Give it a try

All too often a negotiator is told, by a risk controller who is seeking a preposterous term, well I'm not going to die in a ditch about it, but at least let's give it a try.

I mean, why not?

Let’s take an example:

You have asked your client to indemnify you for losses you suffer performing the contract. But what standard of conduct must you display before claiming on the indemnity?

Your risk officer suggests exclude liability under the Indemnity where the loss arises as a result of our gross negligence.

“'gross negligence? But surely no sensible client will accept that?” you say.

Your risk officer shrugs. “Perhaps so”. But why don’t we give it a try?

Let me tell you why.

The trade-off between “give it a try” and “will anyone object?”

Because putting it in has a potential cost.

• “Will anyone object?” has an ascertainable, certain, upfront cost: the time and devotion of negotiation and, via the circle of escalation, risk management resources to clear the client objection. You incur this expense even if the point is immediately dropped - clearly the longer you argue about it, the more expensive the cost.
• “Give it a try” has a delayed, remote and contingent benefit:

• Delayed, because the right, if you manage to get it, will only ever have any value at some point in the future (that is, when you get to exercise the right);
• Remote, because it is extremely unlikely, at any time, that circumstnaces arise whereby you would be entitled to exercise that right; (<1% of counterparties would ever be closed out);
• Contingent, because:

• it only has any value at all if we can persuade the counterparty to accept it
• even if we can, we don’t know

• whether we’d ever try in practice to exercise such a setoff,
• whether, if we did, it would be enforceable and
• whether, if we did and it was, there would be anything meaningful to set off against in the first place.

Where, as is usualty the case, the present value of “give it a try” is close to zero, then if the present value of “will anyone object?” is not zero, ten even giving it a try is not a rational move.

See also

• Circle of escalation
• Gross negligence