Civil Contract Negotiations for Relationship Success
Political and social discourse in recent years, particularly in the United States, has been characterized by an alarming rise in incivility, accompanied by an erosion of trust in societal institutions and a growing sense of uncertainty about the future. Lessons learned from these dynamics can be applied to the business realm—and particularly to the process of negotiating contracts for resilient and successful business relationships. Mutual trust between contracting parties is a key to that kind of success, and a simple but important way to cultivate that trust is by practicing polite, respectful behavior—that is, civility—in negotiations.
I. Trust is the Glue
We recently supported “TechCo” (not its real name) in negotiating a multiyear intellectual property license and collaboration agreement. Like many of our clients, TechCo has a strong reputation in its industry for building and maintaining successful long-term relationships with its key business partners. The other party in this case, as a licensor of vital intellectual property, was to become one such partner. In their negotiations, TechCo and the licensor faced an unresolved issue regarding contract-termination rights—more specifically, how easy or difficult it should be for the licensor to end the relationship before the stated expiration date.
After only brief internal discussions, and despite having a solid basis for insisting on narrower termination rights, TechCo decided not to fight the point. As one of TechCo’s executives observed, the clause at issue would only matter—that is, the licensor would only seek to exit the contract—if the mutual benefits of the collaboration or the mutual trust between the parties had drastically deteriorated. Our client astutely saw reciprocity and trust, rather than contractual pressure, as the best “glue” for holding its business relationships together.
This approach to contracting has undoubtedly contributed to TechCo’s respected reputation and healthy business relationships. (And, in the situation described above, the trust demonstrated and goodwill earned by our client’s approach were rewarded with concessions by the licensor on points that mattered much more to our client.) To foster successful contract relationships, especially those that are resilient enough to weather unforeseen storms, parties should seek from the outset to negotiate in ways that incubate, rather than erode, trust.
II. The Civility Connection
Over the past several decades, and even more markedly in the last few years, Americans’ confidence in key societal institutions has declined, with particularly dramatic drops for each of the three branches of the U.S. federal government.1 This remarkable decrease in trust, which comes at a time of widespread uncertainty about the future, has coincided with a similarly noticeable decline in polite, respectful political discourse and other civil communications in the country—such that many now consider incivility to be a crisis.2And research indicates that the connection between incivility and distrust is not just coincidence; it is causal.3
If incivility on the political stage has eroded trust in government institutions, then it stands to reason that incivility in contract negotiations will likewise impair parties’ trust in the relationships that their contracts are meant to establish. Research supports the inverse hypothesis as well, as communications with a civil tone have been found to increase trust on the part of those who observe them.4
III. Further Support for Civility in Negotiations
Consider this scenario: You’ve been given $100 with which to play a game. You, Player A, must decide how much of the $100 to offer to Player B, who knows the total sum you hold. If Player B accepts your offer, you both get to keep your respective portions of the purse. If Player B rejects your offer, you both go home empty-handed.5 How much would you offer Player B? If you were Player B, would you accept any sum you were offered?
Despite the fact that any offer to Player B greater than $0 would result in “free money” for both players, researchers have found that low offers are often rejected on the basis of unfairness.6 Successful players more commonly offer a fifty-fifty split, suggesting that Player A anticipates (correctly) that Player B would rather see the $100 collectively forfeited than accept a division that is patently unfair.7 The takeaway? Even when a mutually beneficial arrangement is clearly within reach, failure to respect your counterparty can sink a negotiation entirely.8
As that research exemplifies, people are generally aware of when they are being treated fairly and with respect. This awareness in turn influences how they deal with others, and whether mutual benefits can be realized.
People who behave civilly positively influence those around them to behave in a similar manner.9 Similarly, incivility triggers impolite behavior in others, almost as if it were contagious.10 Long-lasting consequences follow this spread of bad behavior. In the workplace, employees who witness or experience incivility spend less time in the office, put less effort into their jobs, and produce lower-quality work.11 Further, and of particular relevance to parties seeking a rewarding contractual relationship, when customers or clients witness incivility among employees of a company, such as a reprimand of one team member by another, they are less likely to continue working with the business.12 When civility is the norm, the long-term effects are positive. Choosing to be civil toward your colleagues, counterparties, and others trust, forges stronger connections, and increases the odds of successful outcomes in negotiations, collaborations, and beyond.13
IV. Considerations for a Civil Negotiation
Civility can be practiced in ways too numerous to catalog here, and in many instances those behaviors will unfold naturally when you regard your counterparts as they are—human beings who innately deserve respect (as do you)—and as you focus on gluing the business relationship together with mutual trust. That said, we would highlight for consideration a few ideas that, in our experience, can be particularly powerful or simple methods for making negotiations more civil and fruitful.
1. Seek the bigger picture. A negotiation risks stalling and becoming combative when parties myopically fixate on single issues, losing sight of the broader goals of the deal. Take time at the outset of a contract negotiation to understand the objectives of your counterparty and, in exchange, to share your own goals. Leading with open conversation fosters trust and lays the foundation for better outcomes. A former Nokia executive attributed success in its major commercial deals to this sort of open, honest conference at the outset. “[One thing] that again proved critical in all these negotiations, was the importance of building a foundation of trust with our counterparties. … [W]e discussed what was important, what we had learned, and what we were trying to achieve. That worked well, in terms of creating familiarity and trust and allowing us to get to results.”14
2. Meet face-to-face. Email, much like social media, is subject to a number of communication barriers that can breed incivility: emails are sent asynchronously, without conveying context through facial expressions, tone, rate of speech, and body language, and the faceless, machine-based nature of the interface can subtly invite writers to abandon some of their usual human-to-human courtesy. There are also no real-time feedback channels to let the writer know whether the message is being misunderstood or causing offense. In the absence of these cues, email recipients tend to scrutinize physical features of the email for additional meaning, going as far as to analyze font style and punctuation for context clues to decipher the tone of an email.15 While in-person meetings aren’t always feasible, video conferencing usually is. Advocate for introductory and other important calls to happen over video to enhance communication quality and civility at critical stages of the negotiation. And even if some participants keep their cameras off, turn yours on. Giving others access to your nonverbal cues improves communication clarity—and helps to instill trust.
3. Actively listen. Another reason to communicate with your cameras on is that you can more easily show active listening to your counterparty. While it’s difficult to make exact eye contact over video conferencing, you can show that your eyes are on your screen and use your body language to show that you’re following along. Active listening also includes mirroring, paraphrasing, and asking open-ended questions to ensure that you’ve understood what the party speaking is trying to communicate. These behaviors are critical in a negotiation for understanding the position of the other party and reasoning behind that position. Active listening shows respect while ensuring that you grasp the essence of the communication, supporting a more efficient and successful result.
4. Invest in the little things. Civility reveals itself in small gestures, including taking time to greet your counterparties and, if you’re on video, greeting them with a smile. Smiling is contagious and has been found to support higher customer satisfaction in service settings.16 At the start of a call, allow a moment for pleasantries, taking time to learn something new about the person on the other end of the line. Rather than thinking of this exchange as prolonging the substance of the meeting, or as preventing you from finishing another task while waiting for the rest of a call’s participants to join, consider pleasantries a critical investment into a productive working relationship that will shorten your overall negotiation time and foster greater trust between the parties.
5. Seek opportunities to concede. In many instances, perhaps counterintuitively, time spent identifying points that can safely be given to the counterparty may pay greater dividends than battling to win each one. Showing you can distinguish between real interests and mere positions will enhance your credibility, and demonstrating respect for your counterparty’s legitimate needs will help foster mutual trust, both for purposes of the negotiation itself and for the business relationship to come.
6. See civility as a sign of strength. Lawyers are charged with being zealous advocates for their clients, but this charge need not come at the expense of civility. The American Bar Association’s Model Rules of Professional Conduct clarify that, while a lawyer must act “with commitment and dedication to the interests of the client and with zeal in advocacy on the client’s behalf,” this duty “does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”17 In fact, practicing this principle can be a hallmark of maturity and experience, as seasoned lawyers are more likely than novices to respond to incivility with civility.18Regardless of your role in the negotiation, you can champion your side’s interests, voice your opinions, and, where appropriate, engage in disagreement without sacrificing civility.
V. Conclusion
To survive and even thrive in a changing world, contractual relationships need the glue of mutual trust. An important and readily available way to foster that trust, from the outset of the relationship, is to practice courtesy and respect for others in all contract negotiations. Setting that tone early on will maximize its benefits, because civility engenders more of the same, as does incivility. Despite the spiraling hostility and distrust that characterize current political and social interchange, negotiating professionals can, and for compelling reasons should, continue to have civility as a key ingredient in their recipe for relationship success.
1 Lydia Saad, Historically Low Faith in US Institutions Continues (July 6, 2023).
2 Civility in America VII: The State of Civility, 2-3
3 Jonathan Van’t Riet and Aart Van Stekelenburg, “The Effects of Political Incivility on Political Trust and Political Participation: A Meta-Analysis of Experimental Research”, Human Communication Research, Vol. 48 No. 2 (April 2022); ABA survey: Civility is vanishing – and it’s the media’s fault, ABA Journal (April 27, 2023), https://www.americanbar.org/news/abanews/aba-news-archives/2023/04/aba-survey-civic-literacy.
4 Angelo Antoci et al, Civility and Trust in Social Media, Journal of Economic Behavior & Organization 160(10):83–99 (Jan. 2019).
5 This game is an example of an ultimatum deal frequently tested by game theory researchers. See Mnoonkin & Ross, Introduction to Kenneth Arrow et al., Barriers to Conflict Resolution 2, 11 (1995).
6 Jonathon R. Cohen, “When People are the Means: Negotiating with Respect,” 14 Geo. J. Legal Ethics 739, 778 (2001).
7 This game is an example of an ultimatum deal frequently tested by game theory researchers. See Mnoonkin & Ross, Introduction to Kenneth Arrow et al., Barriers to Conflict Resolution 2, 11 (1995).
8 Jonathon R. Cohen, “When People are the Means: Negotiating with Respect,” 14 Geo. J. Legal Ethics 739, 778 (2001).
9 Civility in America VII: The State of Civility, 5
10 Angelo Antoci, et al., Civility and Trust in Social Media, Journal of Economic Behavior & Organization 160(10):83–99 (Jan. 2019).
11 Cristine Porath and Christine Pearson, The Price of Incivility, Harvard Business Review (January-February 2013).
13 Edward Casmere, Civility, Sincerity, and Other Compelling Negotiation Concepts: Tips from an American President, Illinois State Bar Association (Oct. 2020).
14 McKinsey Quarterly, Nokia’s Next Chapter, 103 (2017), No. 1.
15 McCarthy, K., Pearce, J.L., Morton, J. and Lyon, S. (2020), “Do you pass it on? An examination of the consequences of perceived cyber incivility,” Organization Management Journal , Vol. 17 No. 1, pp. 43-58.
16 Sam Sommers, The Power of Hello, Psychology Today (Mar. 6. 2012).
17 See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.3 cmt. 1 (2024).
18 The National Center for Principled Leadership & Research Ethics, University of Illinois Urbana-Champaign, Survey on Professionalism; A Study of Illinois Lawyers, 2021.
