Negotiations are difficult. Theyoften require special know-how tohelp resolve certain issues.

Examples are complicated tax issues inany kind of M&A activities requiring taxexperts and chartered accountants, orthe obtaining of licences and permitsfrom international or state authorities.

The European Commission antitrustauthorities in Brussels, for example,approve mergers require the advice andhelp of attorneys specialising in anti-trustmatters. Many arrangements forcooperation in the technical field, suchas the exchange or licensing of technicalknow-how and patents, necessitate theadvice of patent lawyers. The list ofspecialists may become very long.

One question is essential: how shouldone put the know-how of such specialiststo use within negotiations, taking intoaccount that this involvement will mostlikely be rather expensive? It seems tobe rather advisable primarily to definetheir actual role in the negotiatingprocess prior to their involvement.

Problems that should beconsidered include:

Who is a specialist?Usually, specialists within theinternational negotiating process are notinvolved in the total communicationdevelopment to the extent that thepermanent team members are. They are

either involved in specific issues, such asthe patent or tax attorney. If they areinvolved on a permanent basis, it is notas negotiating team members, but inauxiliary roles helping to advance theflow of the communication process, forexample in the role of an interpreter.Other specialists may be involvedbecause of their professional expertise aspatent attorneys, anti-trust lawyers or taxexperts, or because of their neutrality, forexample in the case of an arbitrator orombudsman, or objectivity, ie if bothparties agree on a specialist to resolvecertain questions in discussion.

The involvement of a specialist shouldtake the following considerations intoaccount:

The specialist involved has of course tobe an expert in his field. But this is notenough; he should also have profoundbusiness knowledge and experience,because otherwise you will spend yourtime with highly sophisticated specialiststalking about academic issues which, forone reason or the other, may be notrelevant for the discussed project.Moreover, and due to cost reasons,specialists should be involved in arestricted way and not take part in thewhole negotiating process. This does notapply for the interpreter about whom weare going to talk later in detail. Anotherconsideration may be to separate thenegotiations if the specific issue whichrequires the involvement of specialistscan be clearly separated from theremaining issues. This separation of the

NEGOTIATING FOR LAWYERS

Team Leader plusPermanent Team Members

Special Team MemberPatent Attorney

Special Team MemberTechnical Expert

Special Team MemberSpecialized Attorney

Special Team MemberThe Interpreter

26 the European Lawyer February 2001

In the second of a series of articles on

negotiating and drafting contracts on an

international level, Sergey Frank

focuses on the involvement of specialists

Who is a specialist?

Calling in the specialists

negotiations.qxd 05/02/2001 12:26 Page 26

negotiating process should be decidedand implemented by the leader of thenegotiating team. His other obligationsinclude, inter-alia, the selection of histeam members, the selection of theinterpreter, if any, or of any specialistsinvolved in the negotiating process.

Interpreters in internationalnegotiationsMost international negotiations deal withvery complex matters. They becomeeven more difficult because people fromdifferent countries and different culturescome together. Quite often, they have toinvolve one or more interpreters becauseboth parties do not have a language incommon to conduct the negotiation.

No tactic or strategy exists whichguarantees the best possible result ineach individual case. However, there aresome ideas and behaviour patterns whichcan be used to get better results fromnegotiations faster and more effectively.Apart from cultural differences, whichresult in different negotiation patterns,one has especially to consider theproblem of communication.

The language used innegotiationsIn most international negotiations, bothsides usually speak English, a languagewhich has developed along differenthistorical and cultural lines inBritain and the UnitedStates. The result is thatcertain terms have

different

meanings in the two countries. Forexample, “net sales” in the US is definedas “turnover” in the UK. The entire list ofsuch differences is long.

This difference in terminologybecomes an even greater problem if oneor both parties’ mother tongue is noEnglish. In such cases misunderstandingsmay arise, sometimes leading to almostinsurmountable obstacles. For example,there is no way to translate a negativeEnglish answer such as, “We are notgiving any guarantees!” into Japanese.The latter derives from a culture where astraightforward negation, as used in allWestern languages, is not only unknownbut would be regarded as a sign ofimpoliteness and result in loss of face:Instead of a direct negation the Japanesehave approximately 16 ways to avoid adirect “no”.

DefinitionsTo solve the problem effectively or atleast reduce the misunderstandings which

arise due to the use of differentlanguages and linguistic perceptions

it is important to observe thefollowing: specific key terms which

are likely to play an important part in thenegotiation including, but not limited toprofit, subsidiary or affiliated company,and licence fee should be exactly definedin advance and presented to theinterpreter as well as to the other party.

The term “profit” may mean in thiscontext pre-tax profit but also after-taxprofit. In addition, the tax systems of thetwo countries involved might not beidentical. With the help of a definitionlist of this kind, problems that areconnected with the defined terms becomeclear and concrete. Possiblemisunderstandings, especially for theinterpreter, could be limited and mutualcomprehension is made easier. Bothparties know in that case what they aretalking about and are able to convey theirmessages correctly to the interpreter.

Furthermore, the list can be used againand again during the negotiation tocommit the partner to definitions alreadyspecified and agreed. Do not forget thateach hour invested in mutually definingkey terms may save days of discussions

and frustrationwhich arise

when thepartners

February 2001 the European Lawyer 27

NEGOTIATING FOR LAWYERS

Specialist

Expert in his field

Partial involvementonly

Business acumen vsacademical knowledge

Cost factor

Involving a specialist

negotiations.qxd 05/02/2001 12:27 Page 27

start to disagree about misleading keyterms. They usually do not disagree overkey terms as such but over minor detailswhich then eventually play a major role.Therefore it is worth being as detailed aspossible in the definition of key termsand the basic concept of the transaction.

Practical recommendationsregarding the interpreter

Who is the interpreter?The classical role of the interpreter istranslating from one language intoanother, preferably with specific know-how in technical, legal or commercialterms. Here, the interpreter is just a toolin the international communicationprocess. He does not possess any othermeans to influence the negotiationprocess beyond his translating activities.As an exception and sometimes to bepreferred is the role of the local agentwho, as a liaison officer, prepares thewhole negotiation, is involved in thenegotiation process in part or in total asa general team member andsimultaneously does the translation. Thelast possibility is a bilingual member ofthe negotiating team who takes activepart in the negotiation but is alsoinvolved in the translation work.

However an interpreter is used it isvery important to define clearly his roleand involvement at the beginning. Thismakes clear to the other side whether theinterpreter is a pure interpreter or amember of the negotiating team.

The quality of the communicationdepends on the number of interpretersinvolved. In a nutshell, one basic rule is“less is better”. One should, whereverpossible, communicate without them.Frequently, however, this will beimpossible. Then, one has to reduce thecomplexity of the subject matter andenhance the flow of communication.

There are certain rules which may helpto improve the negotiation process. Forexample, the subject matter could bemade clearer and more easilyunderstood for the interpreter and,

indirectly, for the parties involved.l Be prepared in advance to provide an

interpreter whom you know, who hasyour confidence and who is familiarnot only with the languages involvedbut also the specific subject matter.

l It should be clear that circumstancesother than the business in hand mustbe taken into account. This applies toall international negotiations wherethe atmosphere in which it isconducted is of crucial importance.Maintain a pleasant attitude and usebreaks every hour to give theinterpreter a rest.

l Business practice is not identical theworld over. It varies considerablyfrom continent to continent and fromcountry to country. This applies alsoto the individual role of theinterpreter. If you negotiate in acountry not your home find out whatthe specific practices are there whenan interviewer is involved.

l Brief the interpreter in advance. Givehim the agenda if available. The basicrule is: “The more specific hispreparation, the better hisperformance.”

l Speak loudly, clearly and slowly.Avoid superfluous and little-knownconcepts or slang words. Avoid doublenegatives. Explain major ideas in twoor three different ways. The point maybe lost if discussed only once.

l Particularly applicable to interpretersis the fact that the human brain andindividual perception are not able tofollow long conversations withoutneglecting or forgetting details.Therefore, do not talk for more thanone or two minutes. This gives theinterpreter a chance to speak.

l A concept is easier to understand if itis presented in writing rather than justverbal form. Let the interpreter makenotes and ask questions. Write out themain points and results discussedduring the negotiation.

l Consider potential verbalmisunderstandings. For example, 1billion in the United States is 1milliard in West Germany or France.Let the interpreter clarify such points,though only with your assistance.

l After a part or total agreement hasbeen reached confirm in writing whathas been agreed.

SummaryThe job of an interpreter within aninternational negotiation is usuallycomplex and difficult. This person hasconstantly to make sure that both partiesunderstand and express what has beensaid by each side. He also has tounderstand each statement’s underlyingimplications if there are any. To helphim achieve this one should try to makethe subject matter of the negotiation asclear as possible. In addition, two factorsenhance the interpreter’s performance: apositive climate and enough time for himto understand and communicate theinformation conveyed. Otherwise, bothparties run the risk of havingmisunderstandings which may result in aconsiderable loss of time and,sometimes, even in the failure of thewhole negotiation.

Even a little training brings about aconsiderable improvement in thenegotiating competence of a lawyeracting on an international level. Andeffective negotiating pays off becausethere is scarcely a situation where somuch can be achieved in so short a timeas in a negotiation. n

The first article in this series, on contractual,communication and drafting considerations,appeared in the European Lawyer of October2000.

Sergey Frank is a German-trained lawyer, apartner of Kienbaum Executive Consultantsand managing director of the London office ofthe Kienbaum Group. He is an author andspeaker on international communicationissues.

28 the European Lawyer February 2001

NEGOTIATING FOR LAWYERS

General Team Members

Local Agent

Pure interpreter(Technical/Legal/

Commercial)

Negotiating Member of the Team (Bilingual)

Who is the interpreter?

The specialisthas of courseto be anexpert. Butthis is notenough; heshould alsohave profoundbusiness knowledge and experience,otherwise you will spend timetalking about academic issueswhich may not be relevant

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