LEGALLY SPEAKING, IT DEPENDS: The “Soft No”

Christopher Schiller is a NY transactional entertainment attorney who counts many independent filmmakers and writers among his diverse client base. Follow Chris on Twitter @chrisschiller.

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Many of these columns have dealt with legal esoterica to help in understanding the myriad of confusing topics that you might encounter in your chosen career in the entertainment industry. This one deals more with the negotiation and business side of things but is no less confusing. Getting a handle on it will help immensely in your pursuits, determining when to move on to greener pastures or try different approaches. This article is all about seeing, recognizing and dealing with what I call the “soft no.”

The sometimes fallacy of “Getting to Yes”

There is a popular negotiation technique originally espoused in a best selling book published in the 80s by Fisher and Ury titled Getting to Yes: Negotiating Agreement Without Giving In. The techniques behind this concept of principled negotiation are sound strategies and are part of the toolset of any good negotiator. But as with any catch phrase encapsulating a complex idea, there can be problems with taking the catch phrase too literally. In particular it is simplistic (and contrary to the principles actually at the root of the techniques) to think that “getting to yes” means there is always a yes to get to. As is sometimes the case when asking for directions in the rural area where I grew up, the answer may be, “You can’t get there from here.”

There is potential in any negotiation that the two sides will never be able to come to an acceptable agreement between them. Sometimes mutual interests are mutually exclusive. In a power balanced situation both sides should eventually recognize that the deal is not going to happen and they should accept it and walk away. Ideally.

The word “No” doesn’t exist for some people

softnoThe trouble is, there are some negotiators who have trouble admitting that the answer should be, “No.” It is not usually an issue that they are naive or can’t see the writing on the wall, but there are other factors or circumstances that make it awkward or unpalatable to admit the truth. The problem comes when a final and negative answer can’t be given. This can cause unnecessary delay and perpetuate confusion and misunderstanding. To help get a sense of how prevalent the problem can be let’s go through a few situations where difficulty to say “no” can be a factor.

Rock meet hard place

Sometimes the person in the position to give you the answer is high enough in the chain of command to give a “yes” that moves the project up to the next level, but, isn’t empowered (or isn’t comfortable in their power position) to terminate the potential of the project. This can be because they feel their job is on the line with every decision they make. (Which might actually be the case.) No one wants to be the person in the chain who turned down what proves to be the next blockbuster when they go next door and get a “yes.” But no one wants to greenlight the wrong project either, one that would lose the company millions of dollars and lots of reputation. Either decision would be a potential career killer for the middle management player. Stalemate. Better to string the deal along until either the management structure above lets them know which way the wind blows, or events change – like they get another job at another company for being such prudent and safe decision makers.

Unfortunately, leftover projects usually are relatively easy to get a quick “no,” to clean the slate. A winning decision would be credited to the previous administration, a loss would land on the lap of the new person. A no-brainer.

But during the tenure of the worried and only partially empowered exec, a “no” can be hard to come by.

Cultural no-nos

Then there are the cultural pressures against saying “no.” In the often international dealings in this business it is advisable to have an understanding of the underlying culture of the team across the table from you when negotiating. There are certain cultures where it is distasteful and discourteous to ever contradict or be negative with your conversant. While an agreeable discussion is likely to be more pleasant than a confrontational one, the reluctance to tell you no, when that is the answer they most desire to express can cause delay and misunderstanding. In such cultures it is advisable to allow for this limitation by couching the questions in a manner where the culturally bound person has the ability to positively express agreement with the fact that no deal is forthcoming. A tricky bit of wordplay can allow them to save face and move the negotiations to a swifter end.

In general, whenever you are negotiating it is always better to understand where the other side is coming from in a broader context than just the deal on the table if you want to avoid misunderstanding and have the best shot at success.

Just being polite can be a failure too

In a similar vein there are those people who won’t say no just because they’re trying to be nice. They know how important the project is to you and, regardless of how open minded or thick skinned you may seem, getting rejected hurts. By trying to soften the blow by avoiding saying no directly the act of politeness could extend the pain and impact of the final outcome. The “rip the bandage off” analogy is apt. Letting the sympathetic party know it is okay to hurt your feelings quickly will quicken your ability to seek a “yes” elsewhere to salve the pain.

Hearing the “no”

Of course saying the “no” is not the only side of the deal. You have to be ready and willing to hear the “no” in whatever form it is stated. This is not always easy, especially for passionate filmmakers. Often they find themselves striving against the odds and so any inkling of encouraging news overshadows the oft heard negativity. But being practical in what you listen to and recognizing the true meaning of what is being said to you can allow you to ply your passion project to the next potential yes when the current door in front of you is really closed.

How do you determine you’ve been hearing a “no”? Well, first of all you have to acknowledge the possibility of “no” when you are not getting a definite “yes.” Even an emphatic “yes” might not be a definite one if it is followed by any type of qualification or preliminary hurdle.

Absolutely, we’d love to take on your project. Let me just check with my higher ups to clear the way.”

If there is no immediate action following the yes that moves the project along, you might have to consider a hidden “no.” And if you don’t even get a pseudo “yes” in your response, you definitely need to look for that possible “no” among the weeds.

What to look for?

Weighing options, other factors to consider before moving forward – An enthusiastic and real jump on the bandwagon will quickly attempt to quash any obstacle along the way. A potential no will have to weigh each obstacle against the trouble it will take to move it. Every delay or reconsideration is an opportunity for a “no” to creep in.

Passing the (decision) buck – Enthusiasm from someone not yet empowered to move forward is a nice cheerleading section, but, for the moment, is about as important in getting to the goal line as the cheerleaders are at a football game. But keep in mind that cheerleader today may continue their enthusiasm in the future even after the “no” at this company and, later, when they are in a higher position at another company may be able to take the project on all the way to a “yes” (Rah, rah!)

Silence where noise should be – If a project is going forward with enthusiasm and energy there is a rumbling and giddiness that is hard to contain. Talk and updates are often rapid and effusive. When nothing is coming over the transom for a while it could be that the heat of the project has cooled and enthusiasm has moved elsewhere. If you are waiting for good words and getting nothing, it might be that no good words will be forthcoming (read: “no”.)

What to do to confirm that “no”

The most direct course of action when you suspect the answer is likely a hidden “no” is to ask (and really listen to the answer.) At the very least you will put the other side on notice that their answers so far have not come across as clear as they may think. And when you really listen to the answer given you can discern for yourself the probability of success. If the chances of continuing down this line and getting a yes seem remote, then it is as good as a “no” and your efforts may be better served opening up a new venue of attack with someone else. Honesty truly is valued in this industry (even if it isn’t used in the first instance as often as it should.)

If you still can’t get a definitive answer, it might be for legitimate reasons. But clocks continue to tick as decisions lay in limbo. If it is important to you, do not be afraid of declaring an ultimatum if you truly need to know and move on one way or another. You need to be certain that you can accept the result and truly are ready with your finger on trigger to end the negotiations if you don’t get an immediate, positive answer. If they can’t decide when pushed to it, then it is likely there are more issues involved in moving forward with this group even if they would have given you a yes. Time to move on.

The legality of no “no”

This column wouldn’t be complete without a little glance at the legal aspects of the thing. There are some legal no-nos to look out for. Of course you need to be aware of the possibility of fraud with any negotiation, the false claims or assurances offered to keep you at the table when they have no authority to follow through, etc. A good habit of due diligence or checking out the true credentials of the other side is always a prudent early move. And there is the legal concept of agency (of which the Hollywood concept of agency is only one example.) The larger concept encompasses the authority given to a subordinate to act for a superior. Especially in negotiations, you have to be aware of the actual authority (not just the apparent authority, though there is some legal stand there too) available to the persons on the other side of the table. Sometimes it is not always obvious whether a delay in dealing is caused by reluctance or lack of authority. When in doubt, make sure.

The legal concepts of good faith bargaining, and best efforts also come into the dealings to assure that the parties are not misleading, or misrepresenting to gain advantage and are actually doing all they can and are empowered to to see the deal forward.

building the “no”s to an eventual “yes”

It doesn’t have to be depressing to negotiate to a “no”. You can look at it as beneficial in many ways. Reaching a “no” quickly will allow you to save your energy for where it counts. If you gain admirers of your work at companies that can’t move the project forward you are building the cheer squad – it is a small town after all. Who knows who they might know who could help you find that “yes”. You are also honing the pitch for the right catcher. Every opportunity to convey your project improves how you understand and talk about it. And your professional reputation will gain since understanding the game better makes you a better player (and that is noticed and appreciated by others in the game.)

You may have to reach through and past many “no”s to get to the “yes”. As for the route you’ll have to particularly take, it depends. Just remember the only “no” that will lead you to stop the pursuit has to come from you. And you’re not there yet, right?

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