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October 23, 2019

Prepare and Negotiate for Approval of a Scope Change (Part 2 of 3)

By Gary Richards, LegalBizDev

In part 1 of this series, we discussed how to prepare for discussions with clients to obtain approval of additional fees due to a scope change: Know your Best Alternative to a Negotiated Agreement (BATNA).  In part 2 of this series, we explore how to engage in the actual negotiation discussions.  This blog article is largely based on the second recommendation from Fisher, Ury, and Patton’s book, Getting to Yes: Negotiating Agreement Without Giving In.

Use objective, external criteria

Assuming your client contact agrees to discuss/negotiate with you, the following question can help you prepare to be persuasive:

What documents or events could I refer to that my contact would find authoritative and could help make my case and de-polarize our discussion?

The idea here is to introduce some external criteria separate from your assertions and your client contact’s assertions. In other words, it takes the “me-vs-you” element down a notch.

Some possibilities are:

  • Refer to the engagement letter/statement of work language that covers what has been agreed to regarding the process for encountering increased scope of work. If the engagement letter has such language, then referring to it in this circumstance can be seen as a reminder of what was earlier agreed to, and therefore your contact is put in the position of honoring a prior agreement rather than making a new concession.
  • Refer to relevant precedent. If there has ever in the past been a matter for which they agreed to scope change fee increases as they occurred during the work on their matter, remind them of this, in specifics. Again, you are asking them to honor precedent instead of making a new concession.
  • Refer to their written statement of objectives for the matter, if one exists. Describe your rationale for the importance/necessity of the out-of-scope work in reaching the client’s objective, and/or how much more difficult it would be to reach the client’s objective without it. Again, this use of external criteria invites the client to see it in terms of reaching their objective, rather than just protecting your fee.
  • Invoke the external standard of fairness by asking “How is that fair?” Be prepared to explain why you think your approach is fairer for all, such as, “You would get the chance to approve or deny the work before it incurs the time, and you can more effectively evaluate the value of the increased work as the need for it arises than you can at the end of the engagement.”
  • Refer to industry standards, regulations, or laws if the matter has issues where compliance with them is relevant.

In part 3, the final part of this blog series, we will discuss how working from the client’s interests, not their positions, can help scope change negotiations succeed.

This blog series was adapted from the fifth edition of the Legal Project Management Quick Reference Guide, an online library of LPM tools and templates which is updated twice a year.

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