Unfortunately, Minnesota Nice isn’t really about being “nice” at all. It’s more about keeping up appearances and avoiding confrontation.  Moreover, it can also be used as a negotiation tool, which causes confusion, misunderstanding and frustration among other participants.  So, what do you do when you are in a negotiation and you are confronted with “Minnesota Nice?”  Here are a few tips:

• Keep the negotiation focused on the issues, not the people.  This will help diffuse any potential personal confrontation.
• Be open and upfront, and expressly ask the same of other participants.
• Think bigger than the pie.  You don’t just have to cut the pie into pieces — expand the pie so that everyone is satisfied.
• Make sure you understand where each negotiator is coming from — their frame of reference.  This will give you insight into how to effectively negotiate with them.
• Plan properly for the negotiation.  Make sure you are prepared to deal with various scenarios prior to the actual negotiation.

Keep in mind the ultimate goal, to have a successful result to your negotiation. To accomplish this goal, all parties must “win.”  While each party will independently define what a “win” is to them, these negotiating tips may help you work through your next encounter with Minnesota Nice.

Please share your negotiating experiences and tips.

Interest-based negotiation is a strategy in which parties work to find a win-win solution to a dispute.  A form of interest-based negotiation was described in the book, Getting to Yes, by outlining four fundamental principles: (1) separate the people from the problem; (2) focus on interests, not positions; (3) invent options for mutual gain; and (4) insist on objective criteria.  These principles should be observed at each stage of the negotiation and adapted based on the other party’s response.

When a negotiation goes wild, think about and apply these principles:

• Are there personality conflicts or are responses to issues viewed as personal attacks.  If so, separating the people from the problem can take the sting out of the subject-matter and place the focus on the issues, not the people.
• If the negotiation is focused on positions, one party must lose.  It can be hard to save face in a loss.  Instead, focus on interests so that you can find a solution that satisfies both parties’ interests.
• Has the negotiation fallen prey to the “either-or” problem.  If so, you may not have considered alternative options.  I have yet to see a situation where there are only two possibilities.  Think creatively to find options, don’t focus your energy on proving the other party wrong.
• When interests are directly opposed, use objective criteria to resolve differences.  If you allow differences to spark a battle of wills, you will destroy relationships, waste time and not resolve the dispute.  If you define objective criteria, you will be more likely to agree on a resolution.

Of course, it can be very challenging when one party insists on using a position-based approach.  In my experience, I find that continuing to use an interest-based approach can be effective over time.  By focusing on the interests, you can often engage a position-based negotiator in an interest-based discussion.  Of course, at some point and with some people, these strategies may not be effective and you may need to try other approaches.  However, I think interest-based negotiation is a very important tool and can help resolve many difficult negotiations.  What do you think?

This tool will generate a venture financing term sheet based on your responses to an online questionnaire. It also has an informational component, with basic tutorials and annotations on financing terms. This term sheet generator is a modified version of a tool that we use internally, which comprises one part of a suite of document automation tools that we use to generate start-up and venture financing-related documents.

As I discussed in my earlier post on this topic, legal self-help tools can be very powerful and very useful for businesses in certain circumstances, but they should only be used under the right circumstances.  You should make sure you understand the risks and shortfalls of any legal self-help tool so that you don’t get caught in a trap for the unwary.  If you decide to use a legal self-help tool, you should be certain that you understand what the document does (and does not do) and make sure it accomplishes your goals and does not have any unintended consequences.  I would encourage business people to carefully analyze legal self-help tools and make sure they are appropriate under the circumstances.  Most importantly, make sure to check with an attorney if you have any legal questions, recognizing that legal self-help tools do not provide legal advice.

There has been a proliferation of legal self-help websites that offer all types of legal documentation, from wills to divorces and from incorporations to bankruptcy. These sites offer “solutions” to your legal problems at rock-bottom prices. But just what do they really do and are they an acceptable replacement to an attorney?

The disclaimers read something like this: The information provided on this site is not legal advice. This service is not a law firm and is not a substitute for an attorney or law firm. This service cannot provide legal advice and can only provide self-help services at your specific direction. And they go on for pages from there. So, it is clear, these companies are not offering legal advice, but instead are offering documents that attempt to solve general legal problems, based on your direction. The important decision of whether the documents work in your circumstance (and what documents you need) is left solely up to you. The problem is that most times, you are not sure what the issues are and don’t know if the provided documents really satisfy your issues – or worse, raise more issues. This is the central problem with legal self-help.

I am not suggesting that self-help legal sites are evil or should be avoided. On the contrary, if you know exactly what you need, know the surrounding issues and know how to use the appropriate documentation, these sites offer a very convenient and inexpensive solution. However, for the majority of situations, I believe the insight of a skilled attorney can help flush out what the real issues are and how to solve them. Moreover, if something is done incorrectly in the beginning, it is typically far more expensive and complicated to fix later.

So, go to the legal self-help sites when you know exactly what you want and how to do it. However, if you have any uncertainty or question make sure you seek advice from a competent attorney. The time and money spent will be a good investment in your future.

1. Mutual v. Non Mutual. It is important to initially decide whether the duties of confidentiality will apply to both parties (mutual) or only apply to one party (non-mutual).
2. Explicit Term. The Confidentiality Agreement should have an explicit term that is reasonable under the facts and circumstances of disclosure. Be careful for perpetual confidentiality requirements. Also, think about whether the agreement should expire on a certain date if not executed.
3. Definition of Confidential Information. The definition of what is considered “confidential information” is one of the most important parts of the confidentiality agreement. The recipient usually wants the definition to be as detailed and specific as possible, while the discloser usually wants some flexibility so that information is not inadvertently left out. Another relevant concern is whether to include a requirement that confidential information must be marked “confidential.”
4. Exclusions from Confidentiality. Along with the definition of what IS confidential, the information that IS NOT confidential is quite important. Typical exclusions include: information the recipient already knew, information learned from a third party, information that becomes publicly known, information disclosed pursuant to applicable law or information that is independently developed.
5. Obligations of Recipient. Another vital part of a confidentiality agreement is the obligation that the recipient will not disclose the confidential information it receives. Typical issues here surround disclosure to employees and/or agents and who is responsible if those parties further disclose the confidential information.
6. Recipient’s Standard of Care. The typical standard of care in a confidentiality agreement is that the recipient will treat the confidential information in the same way that it treats its own. Of course, this is only as good as the recipient’s internal control of its confidential information. Alternatively, the confidentiality agreement could contain specific provisions regarding the treatment of confidential information.
7. No License or Representations. Confidentiality agreements may contain a provision stating that no license (implied or otherwise) is granted to the recipient with respect to the confidential information. In addition, the confidentiality agreement may include a provision that states that no representations or warranties are made with respect to the confidential information.
8. Return of Information. The discloser usually wants to ensure there are adequate provisions for the return or destruction of all confidential information upon request or at the end of the agreement. Challenging areas include electronic records, especially those stored in a database or in email and the recipient’s desire to keep archival copies pursuant to document retention policies.
9. Non-Solicitation Provisions. Sometimes parties will include a non-solicitation or non-competition provision in a confidentiality agreement. Although all situations are different, confidentiality agreements are typically not the best place for these types of commitments.
10. Boiler Plate Provisions. While your eyes might be glazed over by the time you get to this section, there are a few key points usually located here. First, make sure the correct governing law applies. Second, the discloser typically wants a provision that allows it to seek injunctive relief upon breach. Finally, make sure the parties are correct in the preamble as well as the signature blocks.