Keywords

Negotiation

the process of interaction that takes place between potential partners with a goal to reach a mutual understanding

Collaborative research

the commitment between two or more partners bringing together diverse skills, responsibilities and resources creatively working toward a common goal/purpose for the benefit of all research partners

Fair contract negotiation

a process that includes mutual respect based on good communication and trust between potential partners, toward an agreement which advances the interests and objectives of all the parties concerned

Due diligence

those responsible steps that need to be taken before entering into contract negotiations.
This can include gathering information about a potential partner's
• organisational policies
• procedures
• research governance
• an assessment of their organisational chart
• a review of their financial management
• their research contracting, ethics review, and vetting processes, and
• their human resources and asset management

Knowing your partner

is critical and can depend on the sector/organisation/community. Some prospective partners may have different parameters driving the research agenda which might raise different contractual requirements

Negotiation process

can typically take place in three phases also known as the
• pre-contract phase
• actual contract, and
• post-contract phase

The pre-contract phase

is based on discussions between potential partners about mutual interests, expectations, goals and outcomes of the partnership. This may include that a research partner be aware and ready to apply different types of negotiation strategies for difficult negotiations

The contract phase

is the process of formalizing all pre-contract discussions into a document that is acceptable to all and binding all partners to its requirements by all the authorized signatories to the contract

The post contract phase

includes the effective execution and administration of the responsibilities and obligations set out in the contract based on agreements reached and recorded during the negotiations

The close-out phase

is the stage a project reaches at the end of its contract period. There may still be legally binding obligations on partners toward each other beyond the life of the contract. This could include that the parties to the contract are required to submit all financial, technical performance and other documents to ensure all obligations have been carried out under the contract

Key Questions

The overarching goal of a well negotiated contract

• should be to strive for a mutually fair and beneficial
partnership

• should be described in the conditions of the contract

• defines the nature of the collaboration toward building a
lasting and mutually beneficial partnership

All partners have something to contribute

• which involves the use of people skills in open, honest and
respectful communication

• by creating an opportunity for each partner to present their
interests and objectives

• in acknowledging what and how each partner can contribute
to and benefit from the collaboration

All partners should benefit in a partnership where

• support to each other is provided in the process of building
interdependent relationships

• the opportunity is created to reflect all partners’ interests and
expectations

• an environment is created to present each partner’s
perspective

• unnecessary disputes could be avoided by transparency and
providing clarity upfront

• establishing a free flow of information and ideas

• enabling each partner the right to ask for fair share of the
benefits of a joint endeavour

Establishing a clear strategy and approach beforehand

is integral to good negotiations. This can help you to achieve the best possible outcome. Knowing how to engage in a negotiation is a skill that can be mastered over time. There are a number of tactical aspects to consider -

• find an approach that is acceptable to you as a potential partner. It is essential that you know and are confident of the skills and expertise you bring (also known as your value proposition) to the partnership. Prospective negotiation partners should strive to share responsibilities and benefits in a way that supports all engaged in the partnership

• decide on a strategy that best responds to your interests and approach. Your strategy will also depend on who you are negotiating with and the type of relationship you have with them. For example, what level of cooperation and common interest exist between you, and how will each party behave during the negotiations? For example, adopting a negotiating strategy involving strong and assertive demands against an organisation that does not have a shared history of cooperation will not be productive. Thus it is essential to research and be prepared

• There are other key factors to consider before engaging in negotiations. It may depend on what you are negotiating, the time frame to conclude a signed agreement, the setting you are negotiating in and understanding the parameters of a partnership. This is critical for knowing where the potential for negotiation lies

• There are instances where difficult issues could arise. This could potentially cause major obstacles in negotiations and later to a research activity if not addressed upfront in a respectful, tactful and calm manner

Tips

Simply because something arrives in a pro-forma contract, does not mean it is non-negotiable

The basis for a good collaboration starts with trust and openness. Thus a well negotiated partnership will form the foundation of a sound contract and a fair research partnership

Before engaging in the negotiation process, it is important to realize your value proposition is so that your position is strong from the very beginning of the negotiations

A mutually beneficial relationship requires that partners enter negotiations with mutual respect and balanced power. This is important when partners might assume different levels of bargaining power

As a negotiator in a potential research partnership, you have the right to expect and ask for your fair share of the benefits of a joint endeavour

Keep in mind exactly what it is you bring to a joint endeavour, and what you need to get out of it in order to make the arrangement worthwhile for you and your organisation. While it will not always be a perfect arrangement, the overarching goal of negotiations in research contracts should always be to strive toward a mutually fair and beneficial partnership

Principled, strategic negotiations focus on achieving a lasting, win-win outcome. Thus it is key to • Clarify your value proposition • Understand all clauses in the contract • Understand the reputational risk of failure • Understand and establish internal processes basing the agreement on objective criteria • Clarify all partner’s needs, boundaries and outcomes • Prepared to give something away or having alternatives in place, and • Manage your emotions and responses

Negotiating is not about ensuring that every partner is equal, it is about how each partner can expect to contribute to and benefit from the collaboration based on their capabilities and resources

A well negotiated partnership forms the foundation of a sound contract and a fair research partnership

Case studies

CASE STUDY

The PATH experience

Projects can be particularly challenging when multiple partnerships are involved. In the case of one of their collaborative projects, the organisation PATH was able to avoid some pitfalls by carefully selecting its partners and being very clear about its objectives, what it could offer and what PATH needed from the partnership. For example, because PATH came forward with links to clinical researchers and policy-makers, and because it had a solid understanding of the specifications that, in this example, any new cervical-cancer-screening test required, PATH was able to attract industry partners that had the expertise and capacity to move product development forward.

In return, these partners were attractive to PATH because they owned proprietary control of the key re-agents needed for their specific technologies. PATH also provided access to clinical specimens from countries outside the industry partner’s normal research networks. In addition, PATH offered the opportunity for major field-based clinical assessments of final products, assessments that would be sufficient for product registration in those countries. As a result, industry partners realised that working with PATH would provide an opportunity to re-engineer their product (in the case of one partner) or develop a new product (in the case of the other partner) to address lower-price market segments. In both cases, the partners gained valuable inroads into markets they previously did not have access to. Without the PATH program incentives, it is unlikely that either company would have undertaken these major efforts to adapt and develop their technologies for use in developing countries.

(Taken from Krattiger A, RT Mahoney, L Nelsen, JA Thomson, AB Bennett, K Satyanarayana, GD Graff, C Fernandez and SP Kowalski. 2007. Editor’s Summary, Implications and Best Practices (Chapter 17.17)).

CASE STUDY

The INDEPTH-NETWORK experience

Fair research collaboration involves mutual respect, good communication and trust toward agreeing on a longer term relationship which advances the interests and objectives of all the parties. For example, the INDEPTH policy provides template license agreements to use in the case of data producers making data available for sharing on the INDEPTH Data Repository. As well, it provides a template for data use agreements between the Network and a secondary data user.

Before the policy was established, there was a long-standing discussion among INDEPTH members, starting as early as the 2005 Annual General Meeting of the Network in Durban, South Africa, on how to responsibly, efficiently and widely share public health research data within and beyond the Network in a sustainable manner. This process culminated in the appointment of the INDEPTH Data Access and Sharing Committee (iDASC) at the 2009 AGM in Pune, India, which was tasked with drafting a data sharing and access policy under the auspices of the INDEPTH Board.

A primary input to the policy were the discussions held during a joint INDEPTH-COHRED meeting in Nairobi, 28-29 July 2011 which was attended by 22 INDEPTH member centres. The outcome of the meeting was an INDEPTH-COHRED position paper on sustainable data sharing in public health research. The INDEPTH data access and sharing policy builds on existing Network and Centre specific data access and sharing policy documents and identifies various categories of data and access levels associated with each. It also stipulates the terms, conditions, scope and time frame for accessing and sharing the different data categories equitably, ethically and efficiently. The scope of this Network policy is restricted to the sharing of those data (falling under different data types mentioned in this policy document) that are submitted by member centres to the Network.

– Kobus Herbst (Principal Investigator) INDEPTH iSHARE Project, INDEPTH Network

Additional Resources