As an entrepreneur, you negotiate every day. Just like a market trader and a stock trader. And just like everyone else. Negotiation usually happens unnoticed; give and take, that’s part of life. But what if a negotiation doesn’t go smoothly? If the other gives too little? Do you feel like you’re giving too much? And what do you do when a negotiation gets stuck and there seems to be no movement?
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“No” is an invitation
In negotiations, ‘no’ is often seen as the opposite of ‘yes’. So as an end station; the negotiations failed. That is sometimes true. More often it means ‘ I’m not ready to talk about a solution ‘. Then ‘no’ is an invitation to speak further. But how do you get the other party (or yourself) to move again? That there is further talk, talk about the solution you have in mind? Realize this: you need the other person to get the best solution for yourself. So don’t play the man. Good constructive communication is important, even if you disagree on the content.
And return to the beginning; what is important to you? And what is important to the other? Fundamental interests (needs) often play an important role here, such as financial security, appreciation or specific concerns. If you know the interests of yourself and the other party, you know what it is really about. And you often understand the ‘no’ better. Then, together, you can more easily come up with a solution. A solution that you are both happy with.
The above is in line with (the first 3 principles of) negotiation according to the Harvard method. This method is an international understanding and success and is based on 5 principles:
- separate person and problem
- make an inventory of your own interests and the interests of the other
- take mutual interests into account when looking for a solution
- use objective criteria
- determine your best alternative if the negotiations fail
With this method you ensure effective negotiations, which often lead to creative and unexpected solutions.
Do you have questions about negotiating or about the Harvard method? Then contact us without obligation . Loes van Kooten of HJ Advocaten & Mediators gives courses in Harvard Negotiation through the ADR Institute , among other things . As a lawyer, Loes also provides strategic advice during negotiations to entrepreneurs who want to achieve the best result, both in the foreground and in the background.
Shareholder dispute? – 4 ways to bring peace to the tent
As an entrepreneur, you started a collaboration in a BV full of energy and confidence. The company provides a good product or service. You also have a business plan with a vision, a strategy and clear objectives. If a dispute arises between shareholders, this distracts from what really matters: the implementation of that business plan. In addition, a shareholder dispute often causes negative energy and unrest in the workplace. All this is at the expense of results. It often even poses a threat to the continuity of the company. Rapid action is necessary in order not to endanger the company. You want peace in the tent again! What resources can you use for this?
If you are still somewhat on speaking terms with your co-shareholder(s), you can opt for mediation . You work together on a solution under the guidance of an independent and impartial mediator (the mediator). Mediation is often a faster, more constructive and cheaper means of a solution than legal proceedings. In most cases, a solution is reached with an average of three conversations. The success rate is approximately 80 to 90%. It does require the willingness of all parties to come to an agreement. The best solution in mediation is that the relationships are restored and the shareholders continue to work together. During the mediation, however, it may also appear that it is better to separate as shareholders. Possible solutions are, for example:
- legal separation
- sale of shares to a third party
- dissolution and liquidation (or turbo liquidation) of the company
Are you unable to find a solution in mutual consultation and is mediation not the right way to find a solution? Then you can go to court.
Expulsion / exit (statutory dispute settlement)
If the articles of association or shareholders’ agreement do not contain a dispute settlement procedure, you can make use of the statutory dispute settlement scheme. This scheme has two options:
- Expulsion : if the conduct of one of the shareholders is the cause of the dispute, then his co-shareholders can force him through the courts to transfer his shares to his co-shareholders. They will have to demonstrate that this shareholder harms the interests of the company.
- Withdrawal : the shareholder who wants to withdraw asks the court to force the other shareholder(s) to take over his shares. The withdrawing shareholder will have to file a claim in court for this and must demonstrate that the continuation of his shareholding can no longer reasonably be expected of him.
For both options, therefore, a judge must be convinced with evidence of the need for expulsion or disengagement. Is the judge of the opinion that the request for expulsion or retirement should be granted? Then the value of the shares must be determined. The parties can make agreements about this themselves. If they cannot resolve this among themselves, the court will appoint an expert to value the shares. The parties are then obliged to adhere to that price.
The disadvantage of the legal dispute settlement procedure is that squeeze-out and exit procedures often take a long time. In the meantime, the dispute continues. Don’t you have that time? In that case, you can also start a so-called inquiry procedure with the Enterprise Chamber as an alternative.
Inquiry procedure at the Enterprise Chamber
An inquiry procedure is being conducted at the Enterprise Chamber of the Amsterdam Court of Appeal. The main aim of an inquiry procedure is to restore good relations. The first step in an inquiry procedure is a request to the Enterprise Chamber to investigate the policy and course of affairs within a company. In addition, you can ask the Enterprise Chamber to take immediate measures to prevent or resolve the impasse, so that the company can continue to operate during the investigation. Examples of immediate provisions are:
- the suspension of a driver
- the appointment of an (interim) director and/or supervisory director
- the (temporary) suspension of voting rights on shares
- the (temporary) suspension of decisions
Does the Enterprise Chamber grant the inquiry request? Then it appoints an investigator to investigate the relevant facts. You must give the investigator access to all of the company’s information. The researcher records his findings in a report. If, based on this report, you or your fellow shareholders are of the opinion that there has been mismanagement, you can request the Enterprise Chamber to take definitive measures in a second phase. These can also be far-reaching measures, such as dismissal of a director, annulment of a resolution or even dissolution of the company. The Enterprise Chamber therefore has far-reaching powers and can act quickly and decisively. In many cases, this makes an inquiry procedure suitable for breaking deadlocks within a company.
Mutual consultation – whether or not accompanied by a mediator – is in most cases the fastest way to a solution. Can’t find a solution in mutual consultation or mediation? In most cases, going to the Enterprise Chamber is the fastest way to a solution. But the ordinary court can also make decisions in a shareholder dispute.
Are you dealing with a (threatened) shareholder dispute? Or do you want advice on how to prevent a shareholder dispute? Please feel free to contact us. Our extensive experience with shareholder disputes means we understand the dynamics and sensitivities you face. This allows us to act quickly and help you find the fastest way to a solution.