Negotiating Complex And Contentious Contract Provisions

"We've all been there.

You receive a counterparty's redline that deleted your version of a provision and replaced it with their own.

You've tried to discuss it with them but get nowhere. It feels like this issue could derail the whole deal.

Here's an approach that I use in these situations.

1. I create a table with the first column as the smallest subset of issues in the provision or concept.

2. I add two more columns - one for our proposal and one for the counterparty's proposal.

3. I copy and paste the exact wording proposed by each side into the box for that issue. It is critical NOT to summarize. Use the exact words. Otherwise, the parties focus on the inconsistency between the table and the contract.

4. I add a fourth column called Resolution and leave it blank.

5. I send this table to the other side in advance of the next negotiation session.

6. During the call, we walk through each issue. We note resolution or action items in the last column.

This approach allows us to identify any common ground and to work through the rest methodically. It upends that feeling of being overwhelmed and gives a process for the discussion."

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