Canada: Positive Negotiating for Success

Last Updated: September 28 2015
Practice Guide by Duff & Phelps

Regardless of what we’re doing, if the outcome is important, and anyone else must agree, then negotiating becomes a critical matter. The following observations are a result of over a decade “doing deals” in the context of M&A. In each case the outcome was absolutely vital to the parties involved, and required their agreement. It has therefore been surprising how many participants on both sides of the table appeared to go into the process lacking an understanding of the fundamentals of negotiating to ensure a positive result. The lack of knowledge and experience is compounded by the high emotional content in many transactions, and becomes more critical due to the high risks involved in a bad result.

If there’s one over-riding mistake that we’ve seen people make which threatens their desired outcome it’s picking unnecessary fights. We advise our clients to create win-win: Always focus on how to get the outcome you desire, while avoiding win-lose. It’s not always possible, but more often than you’d think. With that uppermost in mind, the other suggestions make even more sense.

1. Be prepared—it’s much more than the Boy Scouts’ marching song! Do your homework. Set goals, and to the extent possible, define the boundaries of what you will deem “success.” Be prepared by knowing as much as possible about the overall situation, both from your point of view, and, equally important, from the vantage point of the people with whom you are negotiating. Of particular importance, at the outset and throughout the process, validate your own data, and the information provided by those with whom you are negotiating. Don’t make assumptions. They can be extremely costly.

A road map helps to guide the effort. Build an agenda for the negotiations. And continually be alert to any “hidden agendas” across the table.

2. HAB (hot air balloon) factor: Frequently leave the immediate scene and look down upon the situation from 10,000 feet. From that height you will see the total picture, be able to make a realistic assessment of progress, and, most importantly, avoid becoming side-tracked down the wrong alleys, blind alleys, or spending time on picayune details which really are not central to your goals.

3. Walk in the other person’s moccasins: Project your thinking to imagine you are across the table from you. Attitudes and priorities will likely be different from there, and that awareness may prompt you to adopt a different strategy. In any event, as a result, you will probably be able to advance your cause much more effectively when you are able to predict response, rather than being blind-sided by it.

4. Leave your EGO at home: Being more right and more smart is rarely productive. Remember it’s the outcome that’s important, not your need for self-importance or superiority. Assume the people you are negotiating with are every bit as smart as you are. ( It’s hard to find stupid people to negotiate with.) Be mindful of the need for “face”. (It’s not just a Japanese concept.)

5. Don’t sweat the little things: In negotiating it’s usually referred to as “nickle and diming”, even when it involves non-monetary matters. Being adamant about the less important things does at least two things-neither of which is desirable. It creates a frustrating and negative environment, and it results in a “you owe me” mind-set across the table. When this exists, it’s harder to get the outcome you desire on the really important factors.

6. Don’t start from outside the box: Some people picture all negotiated agreements as ending up “in the middle”. And therefore to alter where the middle gets defined, they start with an extremely exaggerated position. In my experience, this kind of posturing is seen for exactly what it is, and as a result it doesn’t work. In fact it often backfires when one party is deemed to be “posturing”, advancing unreasonable demands. Such behaviour creates bad faith, which is the stuff that destroys productive negotiations.

7. Hang tough……selectively. In every negotiation there are a few critical matters which are central to the outcome you want. (They become very clear when you employ the HAB factor.) Be prepared to trade off other items to get your way on these. Be prepared to redefine your approach, and even redefine the item to accomplish what you want. Put your creative juices to work to find a way to create a win-win around these items. And then hang tough.

8. Differentiate between needs and wants-yours and theirs: Unless you’re the only game in town, you can’t negotiate away things the other side needs. You’ll only frustrate the process-and yourself by trying. The most probable outcome is a break-off in negotiations. Similarly you can’t give on those items which are must-haves in the context of your goals. Wants on the other hand are dispensable. One confuses the two at their peril.

9. Drama is a dangerous negotiating tool: We’ve all heard stories about one party with their hand on the door, leaving the negotiating room, only to be called back by the other party—capitulating.

Unfortunately we don’t hear about the number of times that the bluff is called, and they’re forced to keep on walking. A temper tantrum is a similar high risk ploy. Treat the other side with the respect you appreciate. If you want to act, join a theatre group. If you want to negotiate for positive results, behave like a responsible adult.

With the above in mind, in most cases you can get what you need in even the toughest negotiations… and you may learn to enjoy it.

This document is not intended to create an attorney-client relationship. You should not act or rely on any information in this document without first seeking legal advice. This material is intended for general information purposes only and does not constitute legal advice. If you have any specific questions on any legal matter, you should consult a professional legal services provider.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Contact the Author?
Click here to email the Author
In Association with
In Partnership with
Other Canada Advice Centres
Competition and Antitrust
Mergers and Acquisitions
Labour and Employment
More Advice Centers
Useful Resources
CBVs are experts in their field. The following articles and papers have been written by CBVs, several articles have been featured in various national publications.
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.