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{{A|negotiation|{{image|Onworld and Offworld Comms|png|A quadrant, yesterday. I’m no happier about it that you are, believe me.}}}}Some time in the last decade, we lost the art — the ''joy'' — of the spontaneous two-way conversation. We eschewed it for the transmission of electronic letters, flung like percussive grenades between barricaded trenches. If we talk at all, we do so by pre-arrangement, in formal, minuted, stage-managed, all-hands conferences.  
{{A|negotiation|{{image|Onworld and Offworld Comms|png|A quadrant, yesterday. I’m no happier about it that you are, believe me.}}}}Some time in the last decade, negotiators lost the art — the ''joy'' — of the spontaneous two-way conversation. We traded it for the utilitarian transmission of electronic letters, flung like percussive grenades between barricaded trenches.  


This is a shame.  
If we talk at all, we do so by pre-arrangement, in formal, minuted, stage-managed, all-hands conferences.  


If process efficiency is your goal — if, like me, you’ve recently discovered the [[Toyota Production System]] and can’t stop thinking about it, if you are all about eliminating [[waste]] and {{wasteprov|waiting}} time, consider the difference between '''emailing''' the guy in [[credit]] with your question, and waiting 24 hours for him to pick it up, think about it, and send you an elliptical reply (as likely as not kicking off a [[circle of escalation]]) — it never quite answers the question you had first time, does it? — or [[calling]] the guy up and asking him there and then?
This is a shame. [[JC]] has his theories, as usual, why this happened:  for negotiation has been ''formalised'': given parameters, set out in pre-printed instructions, and delegated into greener, cheaper, remoter hands. Negotiation has been transformed from an elaborate, skilful display of tactical swordsmanship to a utilitarian process of mechanically twisting a battery of dials dials until the numbers match.


In the first case there is so much {{wasteprov|waiting}}: the time it takes to compose that [[email]], setting out the issue clearly, the pros and cons and the desired outcome. Then the {{wasteprov|waiting}}. The wondering. The nervousness. The stress. The heart flutters, as you neurotically pick petals off the daisy. Has he read it? Will he soon? Does he even ''care''? Should I maybe send a follow-up [[email]]? Will I seem ''needy''?
[[JC]] feels we have either ''lost'' something ''important'' — if there must be a negotiation, then it should be imbued with the spirit of Erroll Flynn — or ''put in'' something ''stupid'' — if the oracular art of negotiation, as a [[commitment signal]], is ''not'' important; if all that is required is mechanical onboarding, a voyage of discovery by means of dial-twisting is just ''[[waste]]'': we should long since have ''solved'' this problem and eradicated the process altogether.


(It will ''never'' occur to a [[negotiator]] to call. This may be because systematic juniorisation of the [[negotiation]] function means the negotiators do not have the experience and expertise to talk fluently on their subject matter, and are therefore ''afraid'' to call — and ironically their counterparts, similarly juniorised, will be afraid to pick up.)
Of course, we are in a dun netherworld between the two states: there is not a risk officer alive with the fortitude to set her controls at a point where clients will just accept them, and clients, in any case, rather like being shown the attention of a joust.
====On swordcraft====
Thus, ''some'' [[swordcraft]] comes in handy.  


===External negotiation===
But it is hard to practice swordcraft by the exchange of letters.
 
And, if process efficiency is your goal — and the goal of [[Juniorisation|juniorising]] and the [[Playbook|playbookification]] of negotiation is, without question, process efficiency —  then a tendency to break out into a spontaneous fencing bout is surely [[Sod’s law]] at work.
 
All the same, consider the difference between ''emailing'' the risk controller with your question, waiting 24 hours for her to see it, read it, think about it and send you an elliptical reply that doesn’t quite answer the question — or just [[calling]] her, on the phone, and asking her there and then?
 
In the first case, there is so much {{wasteprov|waiting}}: the time it takes to compose that [[email]], describe your problem, outline the arguments for and against and your suggested outcome.<ref>This is the perfect means of escalation. Few are as well-formed as this.</ref> Then the {{wasteprov|waiting}}. The ''wondering''. The nervousness. The stress. The heart flutters, as you pick petals off the daisy. Has she seen it? Read it? Will she? It it too soon to nudge her? Will that seem ''needy''? Or [[passive-aggressive]]? Does she even ''care''? 
 
It will ''never'' occur to call. This may be because systematic [[juniorisation]] of the [[negotiation]] function means the negotiators do not have the experience and expertise to talk fluently on their subject matter, and are therefore ''afraid'' to call — and their counterparts, similarly [[juniorised]], will be afraid to pick up.)
====External negotiation====
The same will obtain, ''a fortiori'', where [[counsel|outside counsel]] are involved. Here there is the added ''frisson'' of the [[agency problem]] working its immeasurable magic.  
The same will obtain, ''a fortiori'', where [[counsel|outside counsel]] are involved. Here there is the added ''frisson'' of the [[agency problem]] working its immeasurable magic.  


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''Two'': The other side’s counsel has misunderstood the transaction — or sent the wrong documents, or not checked them properly etc.   
''Two'': The other side’s counsel has misunderstood the transaction — or sent the wrong documents, or not checked them properly etc.   


''Three'': You both understood the transaction, but there is perfidy afoot. The other side is trying to sneak points past you wholesale. </blockquote>''The overwhelming odds are that it is one of the first two''. Remember [[Hanlon’s razor]]: Do not attribute to ''malice'' things that can just as well be explained by ''stupidity''. There is plenty of stupidity: consider how little ''you'' know, and extrapolate it. Everyone is bluffing.
''Three'': You ''both'' understood the transaction, but there is perfidy afoot. The other side is trying to retrade by stealth. </blockquote>''The overwhelming odds are that it is one of the first two''. Remember [[Hanlon’s razor]]: Do not attribute to ''malice'' things that can just as well be explained by ''stupidity''. There is plenty of stupidity: consider how little ''you'' know, and extrapolate it. ''Everyone is bluffing''.
 
So, give the benefit of the doubt. ''Call and ask what’s going on''. You will quickly resolve any misunderstandings, and identify that yes, indeed, there has been some ghastly mistake. All can be restored without all-nighters pulled or bullet-riddled drafts exchanged.


So, give the benefit of the doubt. ''Call and ask what’s going on''. You will quickly resolve any misunderstandings, and identify that yes, indeed, there has been some ghastly mistake. All can be restored without all-nighters pulled or drafts exchanged. Even if you it can’t be explained by stupidity, calling still the best strategy. You will know soon enough if your counterparty is a rogue.  
Even if it can’t be explained by stupidity, calling is ''still'' the best strategy. You will know soon enough if your counterparty is a rogue.  


That call you will save you, your counterpart and your respective clients hours of time, expense and needless legal clerkship.
That call you will save you, your counterpart and your respective clients ''hours'' of time, expense and needless legal clerkship.


But, alack: at once the difficulty of asserting one’s [[legal value]] reveals itself. For if you do call and thereby avert that cost, time and inconvenience, who will notice? Who will ''appreciate'' how you stilled the night-time dogs, before they had a chance to bark? A paid advisor has little incentive to put in that call. She may be fearful of displaying her own ignorance (should it turn out to be scenario ''one''). If it turns out to be scenario ''two'', she simply spares her opponent’s blushes. Where is the fun in that? Correcting basic errors is one of the unalloyed joys of commercial practice.
But, alack: at once the difficulty of asserting one’s [[legal value]] reveals itself. For if you ''do'' call and thereby avert that cost, time and inconvenience, who will notice? Who will ''appreciate'' how you stilled the night-time dogs, before they had a chance to bark? A paid advisor has little incentive to put in that call. She may be fearful of displaying her own ignorance (should it turn out to be scenario ''one''). If it turns out to be scenario ''two'', she simply spares her opponent’s blushes. Where is the fun in that? Indignantly correcting an opponent’s basic errors is one of the unalloyed joys of commercial practice.
===Communication as an [[infinite game]]===
====Communication as an [[infinite game]]====
{{onworld and offworld negotiation}}
{{onworld and offworld negotiation}}


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{{sa}}
{{sa}}
*[[Qualities of a good ISDA]]
*[[Let’s go straight to docs]]
*[[Waste]]
*[[Waste]]
*{{wasteprov|Waiting}}
*{{wasteprov|Waiting}}