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Spring 2008

Succeeding At Negotiations Through Preparatory Work And Psychological Operations

Mark F. Weiss, J.D.
Advisory Law Group, A Professional Corporation - Los Angeles, CA - Santa Barbara, CA

Popular books on negotiation are nearly useless in respect of negotiating an exclusive anesthesia contract. They confuse negotiation with bargaining, focus on transactions and not on relationships, and, perhaps worst of all, they portray negotiation as a series of back and forth proposals and counterproposals.

True negotiation in respect of an exclusive contract is an extensive process that is wedded to, and cannot be separated from, a larger strategic vision and a wide set of tactical tools. I refer to this process as the Exclusive Contracting Continuum™.

Negotiation does not involve a time line, although timing is very important. The time to “start” negotiations on an exclusive contract is not when the RFP hits your desk, it’s not when the CEO delivers a draft of the proposed document, and it’s not some magic three, or even six, months prior to the end of your current contract’s term. Rather, the time to being negotiating is . . . well, in the paradigm I urge you adopt, it’s actually already begun. My clients understand that the day to “begin” negotiating their next exclusive contract is the day they execute their present exclusive contract.

As opposed to a timeline paradigm, the Exclusive Contracting Continuum is diagrammed in simple form as a recurring cycle of subprocesses; more fully, it’s diagrammed in the form of an atom, with each of the subprocesses revolving around the nucleus.

Although there is a certain order to the commencement of some of the elements in the initial adoption of the Continuum, once begun, they operate continuously. Among the many elements of the Exclusive Contracting Continuum are the following subprocesses:

If a group’s members’ interests aren’t aligned with the group, all of its other efforts expended in the Continuum process may be for naught. The Group Alignment™ subprocess involves an analysis, and potential realignment, of the group’s personnel and of incentives and restrictions, both monetary and non-monetary.

Deal points, which are developed through a specific subprocess, do not exist in a vacuum – they exist within a framework. Without intervention, the framework is destined to be that of the hospital. Accordingly, we must devote significant efforts to framing the issues in a group-favorable manner well in advance; many of the elements of the Continuum provide the tools to disseminate the message.

The subprocess known as The Knowledge™ is an intelligence gathering operation. It’s aimed at gathering as much in-depth information on the facility you are targeting and on the individuals who are in a position to influence the facility’s decision. This process is also deployed toward potential competitors.

The ultimate purposes of The Knowledge process are to influence the behavior of third parties in favor of the group, and to alter their perceptions of it. This is accomplished though a series force multipliers known militarily as “psychological operations.” These include profiling, with the goal of deducing how the subject will think, behave, and act in similar circumstances. The results of profiling are used as a guide for tactics deployed against the profiled individuals. They are also used in deploying created circumstances, both real and verisimilitudinous, likely to drive the subject’s behavior in the manner most favorable to achieving our goals. Finally, profiling results are valuable in planning situations in which the predicted behavior itself can be used to create a pitfall.

The subprocess of developing community awareness uses the results of The Knowledge to accomplish two objectives: The first is to create direct benefit from their performance – in other words, to do good while you are doing well. The second is to manufacture situations that can be publicized in order to sway broader opinion.

In order to publicize the group’s activities, there is a coordinated Publicity Push™. Putting the Publicity Push into context, participation in events that develop community awareness brings a limited, but highly focused, community consciousness. The purpose of the Publicity Push is to leverage off of the group’s community and other activities to include a larger audience, one that will directly or indirectly be of benefit to the group.

Just as the creation of community awareness and the related Publicity Push seek to transmit truthful, yet spun, information that is attuned to its intended audience as a result of profiling, a similar process using disinformation can be employed. “Disinformation” in this context is misinformation that is deliberately disseminated in order to influence or confuse.

As briefly outlined above, negotiation is a continual process, not a 1-2-3 series of steps arranged upon a timeline. Proper preparation for the “face to face” stage of negotiation requires a long term commitment to developing information and to employing it. This effort is best viewed as a series of interlocking processes designed to maximize your outcome. The processes I present today are among the many processes that comprise the complete Contracting Continuum.

(Reprinted with permission)