Everyone who negotiates for a living has met the nibbler.
The one who keeps reopening terms you thought were closed. We call it bad faith, and we are usually wrong about who started it.
Retrading gets treated as a character flaw. Sometimes it is. More often it is a response — the other side either got frozen out of the room where the terms were set, or watched you go back into the document first.
There is a way to reopen one term and keep the rest closed.
And to learn how, let's talk about a negotiation that did the opposite — the talks in Paris that ended American involvement in the Vietnam War, where both sides went back into a finished document and spent three months arriving back where they started.
It began well. On October 8, 1972, in a private house outside Paris, a negotiation that had produced nothing in four years finally broke loose. Le Duc Tho, the lead negotiator for communist North Vietnam, dropped the demand he had held from the beginning: that Nguyen Van Thieu, the president of South Vietnam and America's ally in the war, be removed from office. Ten days later there was a draft agreement. On October 26, Henry Kissinger, Nixon's national security adviser, stood at a podium and said peace was at hand.
Then the draft went to Saigon. Thieu had not been in the secret talks — the real negotiation was two parties, and he was not one of them. He read it and came back with sixty-nine changes, and Nixon sent Kissinger back to Paris to get them. Pierre Asselin, the historian who worked in both the American and the North Vietnamese archives for his book A Bitter Peace, quotes what Tho reported to Hanoi that November: the United States changed the content of the agreement and reversed all important issues seeking to renegotiate.
So Tho opened a list of his own. In one December session, Kissinger reported to Nixon that Tho had taken back nine concessions he had made the previous week, then re-accepted six of them. The talks collapsed entirely. Three months and an enormous amount of damage later, the agreement signed on January 27, 1973 was, in substance, the October draft.
Kissinger had a legitimate reason to go back in. Thieu could wreck the agreement from outside the room and his objection was a real one.
The problem was never that the document got reopened. The problem was that nobody said what reopening it meant.
So, here are three moves for you. The first two happen long before you need them.
Close terms out loud, as you go.
Say things like: We're agreed on the cap at two million. That one's closed. Then it goes in the recap email that afternoon, or the redline, or the term sheet — not because you plan to enforce it, but because most re-trading lives in honest ambiguity about whether anything was ever actually finished. A counterparty who thinks a point is still open isn't nibbling. He's negotiating.
When you do have to reopen something, ask for it as a request and draw the boundary in the same breath.
Name what you are reopening, name what stays closed, and get that acknowledged before anyone drafts new language. I need to come back to the delivery schedule — our engineer says that date isn't real. Everything else stands. If you don't draw the line, your counterparty will draw it, and he will draw it wide.
And price the reopening before you make it. The question is not what that term is worth. It is what that term is worth against the three things they will open in return, plus the four weeks. Sometimes it is clearly worth it. Often the honest answer is that you are about to spend a month to win something you would have traded away in the first meeting.
One more, and it's the one people hate: if you went back in first, you don't get to call what comes back bad faith.
Think about the last deal that went sideways in the final two weeks. Was somebody actually negotiating in bad faith? Or did one side quietly go back for one small thing, and nobody said out loud what that made available?
The party who reopens the deal owns everything that comes next.
Remember: negotiation is life.
– Gene
PS: Episode 67 answers three questions this email didn't get to. When you finally push hard — the demand letter, the threat to walk, the threat to sue — does that get you a better deal, or does it just get everyone back in the room? What do you do about the person who can blow up your agreement without ever being part of it: the lender, the engineer who has to deliver, the board member who reads the file on Sunday night? And when your contract sets up a process for handling problems later, who has to sign off before anything happens — and what if that is the same person most likely to cause the problem? Paris answered all three, the expensive way.
