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”?

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.