Contract negotiations and project negotiations are difficult to begin with. Rarely do we come to the bargaining table from a position of strength. But occasionally we do, when our client’s client has insisted we be hired. If we deal directly with authors, it is the authors who have the upper hand because so many editors are available. If we deal with a packager or a publisher, they, too, come to the table with the upper hand because there are a lot of editors to choose among.
Regardless of our negotiating strength or weakness, negotiation is something we need to learn to do and to do well. After all, editing is a business.
Negotiation does not come naturally to many people. In the United States, we are conditioned to not negotiate. We go into a store, see a price for an item, and either pay that price to buy the item or move on. Only in rare situations do we expect to be able to bargain.
What I find interesting is that unlike in many other service businesses, we professional editors often do not set our own price for our services. If we work for a packager or a publisher, the client offers us work at its price, and we either accept or reject the work and the proffered price. Yet, when we need to see a lawyer or doctor or to call a plumber, we do not offer them the job at a certain price — instead, they tell us what the price will be. As consumers of the service, we either hire or don’t hire the doctor, lawyer, or plumber at the price they dictated.
Editing is different. Even when we set our own price, as when we work directly with authors, we aren’t actually setting our own price. As previously discussed in other essays, most of us set our price based on unscientific rate surveys and what we think our competitors will/do charge.
Editing has become a service that is beholden to others to set a price. One reason for this shift of power away from editors is the unwillingness and inability of too many editors to negotiate contract terms with publishers and packagers. (That we may do so more often with individual authors is unhelpful to editing as a profession because the influence of such negotiations is too limited; they do not help establish an editing profession norm. In contrast, multiple successful negotiations with a packager or a publisher can help raise — or lower — standards for more than just the one editor or project.)
The key to negotiation is simple: It is being willing to say “no” and to walk away from a client or a project.
Over the years I have had many discussions with colleagues about negotiating terms with clients. Usually the response is that there is no negotiation — projects are offered on a take-it-or-leave-it basis and the colleagues need the work, so they take it. I admit that even with my negotiating experience from preediting days, I, too, sometimes succumbed to the take-it side in my earlier years.
Consequently, we need a cushion that acts as a support for our negotiating efforts. That cushion — being an in-demand editor — is not easy to come by, but it can be gotten with concentrated marketing efforts. As some colleagues are aware, I used to set aside a significant amount of money each year for marketing. The only way to create the cushion I needed was to acquire a sufficient number of clients to ensure that if negotiations with one failed, someone else could fill the potential gap. So, an editor’s first nonediting duty is marketing, to build the cushion that will provide the sustenance the editor needs to be willing to say “no.”
“No” is the most powerful word in the negotiation lexicon. It sets the impenetrable and immutable line in the sand beyond which you will not move. For example, I recently was offered a contract (whose terms I carefully read) that wanted me to agree to background checks, including fingerprinting and drug and/or alcohol testing, at the client’s request but at my expense. As a practical matter, I understand the desire for a background check and have no problem with it. It is a common condition of employment today, unlike when I first entered the job market decades ago.
I also have no problem agreeing to a credit check or a check of public records for a criminal record. Have at it. But fingerprinting and drug and alcohol testing are going too far, as is expecting me to pay for them. I am a copyeditor who never sets foot in a client’s offices. If the client doesn’t like the way I am copyediting a manuscript, the client’s option always has been to fire me and give the manuscript to someone else. I am not an employee; I am, as the client wants me to be, an independent business.
It happens to be the case that I don’t drink alcohol and that the only drugs I take are doctor prescribed, but that has nothing to do with whether I am willing to agree to testing — I am not. Fingerprinting is also unacceptable. If my work required me to be on the client’s premises, to care for the client’s infant children, to write the accounting or server software to run the client’s business, or any of myriad other tasks, fingerprinting might be acceptable and appropriate. But copyediting puts me in touch with no trade secrets, no intellectual property, and no final decision-making; thus, fingerprinting is an unwarranted privacy intrusion and unacceptable as a condition.
For me this line in the sand cannot be crossed. I am willing to say “no” if the clause is not modified to my satisfaction. That “no” is a powerful tool for me. My willingness to say “no” and my conveying that willingness to the client change the dynamic of the negotiation. If the client wants my services, it has to engage in give-and-take with me.
In the end, the question will come down to “How much am I willing to give to work with this client?” Some changes to the contract are what I view as indisputable, by which I mean the client can’t really object to striking or modifying the clause if what the clause demands has no relevance to the services for which I am to be engaged. The background check does have some relevance, which is why I am willing to agree to such a check; it is the fingerprinting and drug/alcohol testing that has no relevance, and so I only ask for that portion to be struck.
An example of a clause that has no relevance is one that requires that I carry a $1 million automobile liability insurance policy. There is no logical connection that I can see between copyediting and an automobile liability policy. This is one of those clauses that a legal department inserts into a form contract that the human resources department uses for everything. The problem is that if I sign a contract with this clause in it, I will have to buy such a policy — whether I really need it or not — and at my expense. Clauses like this are indisputable clauses and indisputably need to be struck from the contract.
More difficult are the clauses that are pro-client and antieditor but which do have a basis for inclusion, at least from the client’s perspective. An example of such a clause is an arbitration clause. I don’t mind such clauses — too much — except if they also cover fee payment. Most editor invoices are too small to resolve by arbitration because of the cost of arbitration. (Let’s not forget that statistically, even if the plaintiff is right, arbitrators will find for the company. The reason is that arbitrators earn their living by being selected to arbitrate and companies won’t pick arbitrators who rule against them. The likelihood of an editor having regular arbitration cases is exceedingly minuscule, unlike the likelihood for the company. In arbitration, the game is stacked ahead of time.)
But even in these instances, I am more likely to obtain a modification of particularly onerous clauses because I am willing to say “no.” If the client is unwilling to negotiate changes, I need to weigh the benefit of working for the client against the risks imposed by the contract terms. Often, but not always and in less than a majority of times, saying “no” with an explanation results in further negotiations. But there are times when only the “no” is heard by the client.
How prepared are you to say “no”?
Richard Adin, An American Editor