Implementation Negotiation: A Transactional Skill that Builds on and Transforms Classic Negotiation Theory
Transactions: The Tennessee Journal of Business Law, Forthcoming
38 Pages Posted: 21 Aug 2018 Last revised: 15 Oct 2018
Date Written: October 9, 2018
Implementation negotiation is the specialized negotiation in which deal lawyers engage after the principals negotiate the business terms of the transaction. Classic negotiation principles guide these deal term negotiations. But once the parties agree, the dynamics, tone, content, and purpose of the negotiation change. Parties are no longer looking at whether they can find a way to agree. They do agree. Now, the lawyers must transform the clients’ bare bones agreed-on business terms into a contract that memorializes the parties’ joint vision. This is implementation negotiation, a new way of thinking about contract negotiations. Implementation negotiation theory does not displace classic negotiation theory. It simultaneously builds on that framework and transforms it to work in a different context. This article begins by reviewing classic negotiation theory and principles and then explains how implementation negotiation builds on and transforms those principles, including why BATNA recedes to the background, why seasoned negotiators know the parties’ interests and issues and the expected zone of agreement, even before negotiations begin. The article next details the multiple subcategories of implementation negotiation through narrative and a series of illustrative, simulated negotiations. It concludes by briefly discussing the implications of this new pedagogy for legal education.
Keywords: Transactional, Negotiation, Business, Deal, terms, Lawyer, Contract, Implementation, BATNA, Zone of Agreement, Interests, Issues, Risk Analysis, Contract Analysis, Risk Allocation, Business Issues, Drafting, Pedagogy, Translation Skill, theory, principles, language, legal effect, classic
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