First, apologies to anyone who thought we’d be talking about negotiating research collaboration contracts WITH Muhammad Ali.
A lot of people think that negotiation is about winning and losing. That you get to stand over the other party bellowing “Get up and fight, you bum!” And while I really love that mental picture (especially if you knew our general council), the real point of a mano-a-mano legal negotiation on research contracts is that everyone walks out of it feeling like they are the greatest.
Float like a butterfly
Research contract negotiation takes delicacy. It goes best when you make the time to build a lot of understanding up front. Here’s my favorite advice from my favorite book (besides Gone with the Windsors): Getting to Yes
Don’t deduce their intentions from your fears
My company is obsessed with data, and they should be, because they have loads of it. Their big fear is that their data will be:
- Taken, lost, overshared, sold or otherwise used in a totally unplanned way
- Turned into something very cool that they have no stake in
If I don’t pay attention, I could deduce your intention from my corporate fears: you’re plotting to siphon off as much data as possible, build a machine learning algorithm and take over the world (without even allowing us to negotiate for commercialization rights!). That might not actually be your intention.
Similarly, you might be assuming that my company is looking to…. Actually I don’t know what you fear most. We should talk about it. Which brings me to:
Discuss each other’s perceptions
If I know up front that your real objective of our partnership is publications or PR or training students, I can help to make sure that happens. Similarly if you want to, or have to, make all our results open source, we can plan that. Maybe your team wants a lot of autonomy, or maybe you’ve felt burned in the past when a company started a collaboration and then went silent for months. Both of us likely have ideas on money and timelines and ways of working. And you’re the best person to explain the character and priorities of the lab we’re working with.
Look for opportunities to act inconsistently their perceptions
This one is my favorite. Collaborators are always surprised to hear that money is less of an issues than data sharing (at least where I work). I’m always delighted to hear that you’re ok letting my company owned derived data. I’m often able to give collaborators ownership of the results of the analysis, because I’m more interested in retaining IP on the methodology. Often we can split up the results of the project and everyone gets out of it what they’re looking for.
Make proposals consistent with their values
I check this every time, but generally the university values publications and academic freedom and the ability to let students go on into (potentially competitive) projects. If I can find ways to make that a priority, you’re much more likely feel comfortable that you’re negotiating to your best advantage with me. Similarly, if you know I’m tasked with being compulsively careful about data use, you can help me feel secure there.
Sting like a bee
The trouble with fluttering around, looking deep into each other’s eyes, trying to understand each other, is that it takes time. And that is one thing that no one, especially the researchers who are actually going do this research have. I have known negotiations that TOOK LONGER THAN THE RESEARCH COLLABORATION ITSELF. Let’s work together to understand each other, float like a butterfly and sing kumbaya together really fast, ok?
One of my personal natural talents is being a pest. I keep a running log on where things are with every negotiation (we do about 50 a year) and who is sitting on what. Then about every third day (unless we’ve agreed a different deadline) I go back with a reminder of what we’re waiting on. I don’t pester the party on the academic side quite so often (and I always ask if they need anything from us), but I do check in probably every other week if they’re sitting on something. Sometimes they just forget that it’s back in their hands, and sometimes they were waiting on more information or explanation.
I used to schedule all my pestering on a Friday. But Tuesdays are better. The panic of Monday is over, and I get a much better response rate.
Some stuff doesn’t really matter that much. The legal team I work with are careful and thorough people, but it does help to revisit sticking points regularly to discover if they’re really risks and if this is really something we need to insist on. Plenty of times, the legal teams (on both sides) were just testing the waters and what they’ve positioned as “unacceptable” is actually negotiable or even not relevant to the project. Keep focused on what really matters.
Are all my contract negotiations fast and pain-free? Er, no. We’re in a time of great change when it comes to intellectual property and university-industry collaborations. And I’ve learned plenty of things the hard way (sorry, University of Melbourne). But I know that my Research Collaboration Office and the university’s KE and legal team really do want this to work out best for both parties. The projects themselves have so much more to gain in terms of research articles and relationships than they generally ever do for project IP.
It’s not a zero sum game. And it’s not worth trying to negotiate like that. Because, as Muhammad Ali himself said: “There are more pleasant things to do than beat people up.”