I’ve Just Invented a New Term: “Negotiation Theater”

I just used in this post a phrase I coined half an hour ago: “negotiation theater.”

It refers to the time that lawyers waste negotiating lawyers-only contract deal points that have no basis in reality. Some examples:

  • Whether to neutralize “double materiality” (see this 2013 blog post).
  • Whether to use reasonable efforts or best efforts. Or commercially reasonable efforts. Or reasonable good-faith best efforts. Or …
  • Whether to use indemnify or hold harmless or both. And hey, what about defend? (See this blog post.)

I recall how during some negotiations in my law-firm days the businesspeople would tune out as the lawyers started discussing this sort of stuff. Perhaps some lawyers indulge in it to feel important, but I suspect that many do it just because it’s expected.

My terminology was inspired by a related but more cynical construct, “security theater.” Doubtless the concept of negotiation theater generally is as old as negotiation itself, but getting more specific would make the terminology more of a mouthful. “Lawyers-being-lawyers negotiation theater”?

  • http://rickcolosimo.com Rick Colosimo

    I really like it. It’s more precise than the alternative, and related, “trying to be a hero” for when a lawyer reviews a document and creates tens of proposed changes, most of which change the actual deal vs. improve the contract’s implementation of the actual deal — as in “this says you have no voting rights. You should get voting rights.”

  • Uninterested Observer

    I’ve long called negotiations “kabuki”. For most transactions, you end up in the same place. I know what you’re going to ask for; you know my response; and we each know why the other person is responding in the way they are responding. But we still ask “why?”

    So you’re going to get the same conclusion almost every time, but you have to go through the motions of ritualized dance and acting to get there.

  • http://www.lawnotes.com D. C. Toedt

    Let’s not paint with too-broad a brush, because “negotiation theater” can serve as important proxy evidence (albeit sometimes misleading) that can signal the lawyer’s competence and commitment to the client and to the other side.

    EXAMPLE: Suppose that a client negotiating a contract knows she’s not capable of judging whether her lawyer is sufficiently protecting her interests. Suppose also that the lawyer asks for numerous changes in the draft contract, some seemingly picayune, AND gets the other side to agree to some of those changes. These facts usefully signal to the client and the other side that the lawyer is neither slipshod nor entirely unreasonable and won’t be pushed around. (Whether the lawyer was in fact doing more harm than good by delaying getting the deal done is another question, of course, just as some of the security theatre in U.S. airports is of dubious value.)