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”?
