What to Call the Two Kinds of Confidentiality Agreement

I addressed in this September 2009 AdamsDrafting blog post the thrilling issue of which term is preferable, confidentiality agreement or nondisclosure agreement. (I explained that I prefer confidentiality agreement.) Of course, you have various other redundant possibilities: confidential disclosure agreement, secrecy agreement, confidentiality and nondisclosure agreement, proprietary information agreement …

But that’s not what’s on my mind today. Instead, consider the different ways you can indicate whether one party or both parties (or more) will be disclosing information:

  • One party: one-way versus unilateral
  • Two parties: two-way versus bilateral, reciprocal or mutual
  • More than two parties: multilateral

I think the clearest alternatives are one-way and two-way; the alternatives have diplomatic and other connotations that are unhelpful in this context.

But I don’t use these terms for purposes of contract drafting. More specifically, I wouldn’t include them in the title of any confidentiality agreement, as they’re of limited use as labels. For one thing, if you’re dealing with a one-way contract, of greater interest than the fact that it’s one-way is the question who is disclosing and who is receiving. Since that information can’t conveniently be included in the title, I’d rather leave it at confidentiality agreement.

If I don’t use one-way in the title, it would be inconsistent to use two-way. That doesn’t worry me. Often a two-way confidentiality agreement is just one step beyond a one-way contract, in that one of the parties will be doing most of the disclosing, making two-way misleading as a label.

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.