Keep Negotiating Tactics Flexible

There is no right negotiating tactic if you have the wrong strategy or policy. Strategic objectives and priorities are more important than tactics. Yet history is full of great strategies that were defeated by poor negotiating tactics. The two go together but are not the same.

Flexibility in the choice of your negotiating tactics is imperative. Tactics that are right for one person are wrong for another. Tactics that are appropriate at the start of a negotiation may prove counter productive later. Tactics that worked yesterday may not work as well with the same person tomorrow. Negotiating tactics that worked well in a buyers’ market may prove to be stupid in a period of short supply.

Continual reassessment is the key to good tactical planning. I ask myself these questions over and over again in every negotiation:

1. Can I combine tactics for better effect?
2. Is this a good time to change tactics?
3. How will the other party react or interpret my tactic?
4. Will this backfire on me?
5. If my tactic is rebuffed, will I lose face or bargaining power? How can I minimize the loss?

The choice of tactics involves ethical questions. Ends do not justify the means. Unethical tactics for achieving worthwhile goals ultimately destroy the positive value of those goals. Whether they like it or not, negotiators must also be philosophers when it comes to choosing tactics.

In deciding which negotiating tactics to use, one rule should not be forgotten:

Never use a tactic unless you have considered what countermeasures the other party is likely to take.

The key to selecting good negotiating tactics is flexibility and good business judgment.

A Framework for Viewing Contracts: 6 Issues Present in All Contracts

Contracts come in all shapes and sizes, from small 1 page agreements between individuals to hundred page, multi-billion dollar deals between major corporations with a team of lawyers, bankers and advisors working for each side. Regardless of the size, however, only three elements are required in order to have a binding contract: an offer, acceptance of the offer and consideration. Put another way, a contract is an agreement where there is a promise to do something in return for a “valuable benefit.” Once the fundamentals of a contract are established, however, parties are free to negotiate in a manner that befits their particular situation, provided they do so in good faith and without fraud.

When analyzed, contracts, both large and small, are made up of six basic categories. At times (especially with smaller agreements), these issues will not be explicitly stated in the contract, but will, rather, be implied by law. These default rules are a construct of both case law and statutory law, with Article 2 of the Uniform Commercial Code being the primary means of “filling the gaps.” In larger agreements, most of these issues will be spelled out with exacting detail. While this list contains broad headings, it does provide an overview of what to look for in a contract. The 6 issues inherent in all contracts are as follows:

1. Rights and Obligations Under the Contract. The fundamental issue in all contracts determines who is obligated to perform under the contract and who is entitled to the benefits of that performance. Those with rights can be the individual signing the contract, the company on whose behalf the signatory is signing, “successors in interest” (i.e., a company that subsequently purchases the original beneficiary), and sometimes “third party beneficiaries.” Those with obligations under the contract are the signors and their successors, but may also be guarantors, co-signors, or other parties subject to “joint and several liability.” For example, a partner will be liable for contracts entered into by his/her partners regardless of whether he/she signed the contract individually.

2. Representations and Warranties. Representations and warranties relate to the underlying matters and facts presented in the contract. Specifically, a representation is a statement made by one party at the time the contract is entered into, regarding a fact which is influential in bringing about the agreement. A warranty is a promise that a statement of fact is true. In larger contracts, a specific section entitled “Representations and Warranties,” is devoted to this issue and lays out all of the representations and warranties each party is making subject to the agreement. Regardless of whether there is a dedicated section of the agreement, however, parties will rely on the representations of each other in entering the contract. Examples of what may appear under this heading include statements related to the condition of the goods being sold, statements that a party has the legal right to sell the property, or statements that a party is not in default on any other obligations. Disclaimers and/or “as-is” provisions in a contract are a means of minimizing representations and warranties.

3. Conditions. Conditions are events that must happen (or not happen) in order to obligate a party to act pursuant to the contract. If specified conditions do not occur, a party need not perform under the contract. An example of a condition common in business contracts is that board or shareholder approval must be obtained prior to enforcement of the contract. Other conditions may state that all documents be properly delivered prior to the contract taking effect or that all representations and warranties discussed above are proven accurate. Conditions do not have to relate solely to the parties to a contract. They may involve third parties approvals that are necessary for the contract to happen. Examples of such approvals may be governmental approvals or obtaining insurance.

4. The Deal. After conditions have been satisfied, “the deal” is the real meat of the contract and states who must do what, when they must do it, and what price will be paid. The deal includes allocation of risk (will one party indemnify the other, will damages be capped at a specific amount), and also states the beginning and end of the contract, including rights of the parties to extend or terminate the contract.

5. Enforcement. Usually the “boilerplate” of a contract, enforcement issues state how, when and where the contract may be enforced by a party. Enforcement issues include (i) what law will be applied in the event of a dispute, (ii) who will hear disputes (will it be a judge, jury, mediator or arbitrator?), (iii) where a dispute will be heard (city, county, state), and (iv) which party has the burden of proof when enforcing the contract.

6. Remedies. Remedies determine who is entitled to what in the event of a breach. Remedies often, but not always relate to monetary damages. They will address the ability of a party to obtain and will address whether or not a party can receive punitive damages (which are rare in contracts) or consequential damages (damages that don’t flow directly from a breach, but are somehow caused by it). Other than monetary damages, remedies can also include specific performance (a situation where the court orders one party to perform) and can potentially allow a party the right to terminate the contract for breach.

What Is the New USCIS Provisional Waiver (601A) for Unlawfully Present Immigrants?

New Rule on Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives finally announced

Recently, the Secretary of Homeland Security Janet Napolitano announced the final posting of a rule that has for long been under speculation and long awaited. The new rule is a much welcome relief for those US citizens who are separated from their relatives during the time taken for approval of their citizenship status. The new law, on Unlawful Presence Waivers of Inadmissibility reduces much of the time that U.S. citizens spent separated from their immediate families, whether it is their parents, spouse or children who are still in the process of obtaining immigrant visas and becoming lawful citizens of America.

This is a follow up on, the proposed rule that was initiated on April 2, 2012, as declared by the U.S. Citizenship and Immigration Services (USCIS). This rule tries to amend its previous regulations and allow certain immediate relatives of U.S. citizens who are physically present in the United States to request provisional unlawful presence waivers before they have to depart from the United States for the processing of their immigrant visa applications.

Under the previous law, even the most immediate relatives of U.S. citizens were not eligible to adjust status in the United States and become lawful permanent residents. They had to leave the U.S. and obtain an immigrant visa abroad, which was rather stressful on them since the period for waiting for processing could be as long as 2 years too! It also stated that those individuals who had accrued more than six months of unlawful presence during their stay in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they could come back to the United States after leaving to obtain an immigrant visa. A totally unjustified waiver process had specified that immediate relatives could not file a waiver application until they had appeared for an immigrant visa interview abroad.

This final rule of Unlawful Presence Waivers of Inadmissibility clarifies amendments on the previous rule as well as other provisions within the regulations. The new rule implies, the following-

The new Unlawful Presence Waivers of Inadmissibility waiver process specifies that immediate relatives must still depart the United States for the consular immigrant visa process.
The new rule however grants these individuals, the license to apply for a provisional unlawful presence waiver before they depart the United States for attending immigrant visa interviews in their countries of origin.
In order to be able to obtain a provisional unlawful presence waiver, the applicant must have the following-

Be inadmissible only on account of an unlawful presence.
Must be an immediate relative of a U.S. citizen,
Must show that the denial of the waiver would result in extreme hardship to the U.S. citizen, in some way.
By forming this new law, the Department of Homeland Security (DHS) hopes that these changes will help in reducing the length of time in which U.S. citizens are separated from their immediate relatives who are engaged in consular processing outside the US. It is also believed that this new process will reduce the degree of interchange between the USCIS and the U.S. Department of State (DOS) helping establish better efficiency for both the waiver applicants as well as the U.S. government.

As a part of the unlawful presence waiver, the USCIS will publish a new form, termed as Form I-601A. This application for a Provisional Unlawful Presence Waiver will be specifically for individuals to use when they are applying for a provisional unlawful presence waiver under the new procedure. Those who have filed the Form I-601A must notify the Department of State’s National Visa Center about their willingness to seek a provisional waiver from USCIS body. The entire process will come into effect from March 4, 2013 onwards.

There are of course clauses that those who apply for the unlawful presence waiver must follow.The new rule makes it clear that the filing or approval of a provisional unlawful presence waiver application cannot do the following-

Confer any legal status on the individual.
Protect any alien from being placed in removal proceedings or being removed from the US in accordance with current DHS policies governing the initiation of removal proceedings and the subsequent use of prosecutorial discretion, as and when deemed necessary.
The law does not protect against the accrual of additional periods of unlawful presence.
It does not authorize an alien to enter the US without securing appropriate entry documents or a visa.
The unlawful presence waiver will not convey any interim benefits like that of parole, or employment authorization.
For those of you who are looking for a good immigration lawyer,it is recommended that you consult a lawyer who will guide you through the entire process well and advice you how best to go about it. For this you might want to contact, the well experienced lawyers from the Shah Peerally Group.