Freelancer’s Survival Guide: Negotiation Part Five

The Freelancer’s Survival Guide: Negotiation Part Five

Kristine Kathryn Rusch

This little sequence on negotiation has really caught your attention, even though I’m posting in the middle of the holiday season.  Thanks, everyone, for the e-mails, the donations, and the comments.  I’m also seeing a lot of blogging and tweeting on this topic in response to the posts, which I appreciate.

The more we share our experiences, the  more we help each other.

If you haven’t read the previous four posts on negotiation, you can find links to them here. Before you go any farther in this post, please make sure you’ve read the section on employees.  Part one deals with real employees—the kind who need a W-2—and you really should read that, even if you think you’ll never hire an employee.

But part two deals with people I call “workers,” people you hire to do a specific job for you.  And you must read that section before you read this post.  Everything I write from here on assumes you’ve read that previous post.

In the past four negotiation posts, I’ve talked about the things you need to know about yourself and your business in order to negotiate anything from a weekend gig to a long-term contract.  I’ve mentioned managers, agents, and lawyers in passing—people whom you can hire to negotiate for you—but I’ve pretty much skipped over what they do in favor of having you do it yourself.

In fact, if you read deeply in the Guide, you’ll see me recommend time and time again that you should do most of this stuff, from the financial to negotiation yourself.

Yet I have a book agent and quite often I bring him into a book deal for the express purpose of negotiation.  He negotiates the deal for me.

Does that make me a hypocrite? Am I telling you to do what I say, not what I do?

No.  Just this week—which is, for those of you reading this late, the week between Christmas and New Years, I negotiated a contract all by my lonesome.  It was a short e-rights contract for a novella that a publisher wanted to include in an anthology.  The contract was purposely short and very vague (see last week’s post on why someone would want to do that), and I made it less vague. But I still left in points a hard negotiator would have changed.

Why? Because, in this case—and this case only—it was in my best interest to keep that contract simple.  Normally, I would have negotiated that little contract bloody. But I saw a greater benefit in keeping the contract loose on both sides than I did in pinning everything down.

Also this week, I’ve read a contract of Dean’s, giving him some feedback (which he really didn’t need because he’s so good at this stuff) and helped him design an agreement for another project he’s working on.

And that doesn’t count the several approaches I’ve had from people who want something—a free story (no), a guest appearance (maybe), or some other thing that will require negotiation.

Normally I handle so many negotiations that I barely pay attention to how many.  I’m used to it now. These past ten days have been relatively slow in the negotiation department.

Finally, this week, I’m reading—slowly—a book contract for one of my pen names.  The contract is with a brand-new company for me, and is the fourth iteration of the agreement.  We’ve been negotiating since the first of November, or I should say, my agent has been doing so, while keeping me informed.

The day before Christmas, he e-mailed me the latest iteration, with all of his e-mails and the company’s responses, so that I could see what had been done so far.  I’m reading this version over the holidays, with the idea that there will be one, maybe two, maybe three more iterations before we’re done.

My agent is a good negotiator, a man with a law degree who has a fondness for contract law, and for publishing contracts in particular.  He’s good and sharp and catches things I might miss (or might not care as much about as I should).  But in all of the contracts that he’s negotiated for me so far, I’ve added language, cut language, or asked for things he never even considered.  I’m very, very hands-on, even though he’s the one interacting with the company.

I’m walking all sorts of negotiating lines in what is a relatively slow week, from negotiating contracts myself to making agreements by e-mail to making some verbal agreements to hiring someone to do the negotiations for me.  And that’s normal in a small business.  Negotiation is, as I’ve said before, part of everyday life.  You need to get used to it.

The trick is to know when to do the negotiation yourself and when to hire someone.  Once you hire someone to negotiate for you, you must manage that negotiator properly.

First, let’s discuss knowing when to hire someone.  I discussed this briefly in Negotiation Part Two, when talking about a torch singer who was asked to play a local club.  I showed the torch singer’s various considerations as she negotiated her fee and her performance time at that club.

As to whether or not she should hire someone to negotiate for her, I said this:

At her level of the career, it would be foolish for her to hire a manager to do the negotiating for her.  Better that she learn how to do it on her own than sacrifice $15 to $20 of that much needed $100 for someone to speak for her—when she wouldn’t get much out of that deal anyway.

Many of the considerations for hiring a negotiator are present in that short paragraph.  Let’s look at them.

1) What can a negotiator bring to the table? That’s always the first question you should ask.  Sometimes all the negotiator brings is a calm disinterested voice.  And in some cases, that calm, disinterested voice is worth every penny you spend on it.  A person who is not emotionally involved should—and let me emphasize should—see things a bit more clearly and hear what the other party has to say, without bias.

This calm disinterest is often why many organizations hire arbitrators to help negotiate contracts between say, a union and a company.  The arbitrator will not negotiate for either side, but will facilitate negotiations.  In these instances, each side has its own negotiator and the negotiator works through an arbitrator, to keep things as calm and above-board as possible.

Generally speaking, you as a freelancer don’t need that high level of expertise.  But you do need to figure out what you need.  If a calm voice is all that’s necessary, then you might not need a professional negotiator at all.

Let me stop one more time here and say this, a professional negotiator has a different name in different businesses.  Lawyers can be professional negotiators.  Most people in publishing rely on agents.  People in Hollywood have tiers of negotiators from agents to managers to lawyers.  Singers often have managers.  But even  your accountant can and will negotiate for you with the IRS, if need be. So negotiators come with all sorts of professional labels. For the purpose of this section, I will call them negotiators.  (But for the purpose of the Guide, they fall into the category of “worker”—someone you hire to do a job for you.  The job, in this instance, is to negotiate something for you.)

What else can the negotiator bring to the table? Expertise.  It might take the negotiator five minutes to negotiate a contract that you’ll struggle over for days, simply because the negotiator is more familiar with the language of that contract than you are.

A negotiator can also bring clout.  Some negotiators—agents and managers in particular—have a reputation all their own, over and above yours.  That reputation should augment the negotiation in a good way.  In other words, if you’re a beginner like that torch singer, a high-powered manager might—might—get you more money just because he’s on board. He might be able to get you into meetings with prospective clients that you wouldn’t otherwise get.

A negotiator also has the ability to say things you can’t. That might sound silly until you think about it.  I would love to tell a publisher that he should pay me more because I’m pretty or famous or a damned fine writer, but it sounds better when my representative says it.  Right now, as a woman who has worked in this field for twenty years and has many accolades as well as an excellent track record, I’m a lot more comfortable doing this part for myself.  But even now, I don’t say, “I’m a bestselling, award-winning writer.  You should pay me more.”  I’m a lot more subtle than that.  But I do make sure that the party I’m negotiating with has the facts before she begins bargaining with me, so that when I get to my way of dealing with this, which is, “It’s not standard practice for me to accept a fee that low or this particular term in a contract,” she knows I’m coming from a position of strength.

Early on, you might have to hire that strength.  Or someone willing to make that statement for you.

There is a downside to everything a negotiator can bring to the table.  Right now, I’m only discussing the upside.  But you’ll have to factor it all in, including the screw-up factor which is this:

The more people you bring into a negotiation, the more likely it is to go wrong.

A long chain of negotiators (often seen in Hollywood—the lawyer talks to the manager who talks to the agent [or doesn’t, as the case may be]) can turn a negotiation into one ugly game of telephone.

And in the end, the only person who’ll suffer for it is you.

But I get ahead of myself.

In answering the what does the negotiator bring to the table question, you have to be realistic.  Often, a negotiator adds nothing to a negotiation.  If you’re savvy about your own business, you probably have all the skills you need to negotiate, and bringing someone else in just muddies the waters.  In the case of our torch singer, a negotiator wouldn’t bring anything to the table except calm, which wasn’t worth the fee the torch singer would have to pay for that calm.

So, before hiring a negotiator for a particular job, make sure the negotiator adds value. So many people have someone negotiate just because that person is on the payroll or that’s what they have this particular worker for, without thinking about whether or not the negotiator is even appropriate to the circumstance.

Think before you act.  And think twice before you hire someone.  Or maybe three or four times.

2. In this instance, make sure the negotiator is worth his fee. Again, you’re looking at value, but you’re looking at it from a slightly different perspective.  If you look at the case of our torch singer, you’ll remember she really needed the money from that gig to pay her rent.  Taking ten to twenty-five percent of the fee away to pay a manager at that point would have been financially devastating for her.

It’s better for her to do the negotiation herself and keep the money than it is to bring in a third party.

This is a two-pronged decision, by the way.  I have a rule of thumb for my business.  Under a certain dollar amount, I generally handle the negotiations myself.  Over that amount, I consider bringing in my agent.  I don’t always do so.

But it’s only a rule of thumb.  Remember last week’s section on contract negotiation: if there’s something I really, really, really want in that negotiation, something that’s so important that I’ll walk if I don’t get it, I’m more likely to bring in the third party to negotiate for me.  Partly this is so that I won’t tip my hand.  Partly, it’s to keep emotions out of the way, and partly, it’s because I’m a pessimist.  In that particular instance, I expect to walk away.  I don’t want to be the one to tell the company that we can’t come to an agreement.  I want my representative to do that—because that falls into the category of something I would rather have someone else say for me than saying it myself.

When you’re considering the fee, you have to look at the value the negotiator will bring.  I once had a writer friend tell me he was “training” his accountant to work with someone in the arts.  In other words, my friend was paying someone who brought no value to the table and who, in fact, was costing my friend not just money but time as well. The accountant had no expertise in the area that my friend needed and therefore was making a boatload of money that my friend could have easily kept for himself.

In the case of our torch singer, the manager wouldn’t have gotten her any more money.  He probably wouldn’t have gotten a better deal.  He would simply have finalized the negotiation and taken anywhere from ten to twenty-five percent to do so.  If she hired a manager in that instance, she was throwing her money away.

Let’s look briefly at the flipside: my book contract.  My agent has put in a lot of work negotiating boilerplate and other points to the contract.  A great deal of my time over the past two months would have gone to minutia that I would have negotiated as well, but I didn’t have to.  It’s been worth the fee.

However, I am reviewing that work right now, and will add my own opinions shortly.  But in value, which I’m equating with service in exchange for money, I’m getting my money’s worth.

The tricky thing is that each negotiation is different.  Even my rule of thumb doesn’t always work—which is why I look at it as a rule of thumb instead of something hard and fast.

In short, I bring in a negotiator only when I need one.  I don’t use a negotiator just because I happen to have one at the ready.  I use one only when necessary.

Here’s the other side of negotiating: so much can go wrong.  You will make mistakes, as I’ve said before.  But it’s better for you to make the mistake than your negotiator.

Because if you’re truly hands-off in negotiation, you might not know about the mistake until the negotiation is over and you’ve signed the contract.  And that, my friends, is not your negotiator’s fault.  It’s your fault.

Let me quote a comment left as we started into this topic, lo those many weeks ago.  I know many of you don’t go back and read the comments section, so I’ll reprint most of it here.  It’s from Randy Tatano, who works as a freelance broadcast news reporter, mostly for NBC.

He wrote:

Well, on the topic of hiring someone to negotiate, a news anchor I know hired an agent to negotiate her next contract. Her agent took such a hard line that management called her bluff and she ended up out of work. She had absolutely no desire to leave but apparently didn’t convey that well enough to her agent.

On the other side I was trying to hire an anchor once and the agent was so incredibly obnoxious I moved on to someone else. I was trying to negotiate and meet the guy in the middle but he wanted to play hardball.

What surprised me about these instances is that both anchors were extremely likable people, yet hired agents who were so difficult to deal with. And, as you pointed out so well Kris, anyone who negotiates for you needs to know exactly how you feel.

He’s right.  Too often a negotiator, who thinks he’s acting in your best interest, can really cause damage to you and your business.  Whose fault is that? Not the negotiator.  It’s yours.  You might have hired the wrong person, brought the negotiator into a situation he had no business being a part of, or failed to communicate what you really wanted from that negotiator.

Next week, I’ll look at a few more negotiator horror stories and then tell you how to handle your negotiator, should you feel you need to hire one.

But remember this week’s lesson: Just because you can hire a negotiator doesn’t mean you should.

“Freelancer Writer’s Survival Guide: Negotiation Part Five” copyright 2009 by Kristine Kathryn Rusch.

You can now order either an e-book copy of the Guide or a trade paper copy of the Guide. It’s in slightly different format and has been organized, so that related topics are in an easily accessible place.