Negotiation oubliette
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Negotiation Anatomy™
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A naturally-occurring subterranean cavern which forms when legal eagles gather to argue about trifles. Given enough nest-feathering, posturing and guano, even the most robust transaction will tend to fray and weaken and may in time collapse: those discussing suddenly find themselves in a dungeon on their own making, not knowing how they got there, but rather enjoying it all the same. While alarming for the commercial counterparties themselves, their negotiators will carry on, oblivious, sometimes for months or even years. [1]
Oubliettes are often prompted by the lawyer’s equivalent of the “clabby” conversation:[2] one struck up by an agent to appear busy while avoiding difficult work, wasting time and provoking maximum forward confusion.
Thus, they have a cosmological quality to them; like any black hole, they are impossible to see directly. We detect them only by their signature detritus: crushed aspirations of clarity and elegance, swirling around an event horizon of nothingness like so many gossamer dreams of greatness, gurgling around a galaxy-sized plughole. We enter these space-tedium singularities often, but always unwittingly, and it is only when scrabbling desperately for a way back out that we realise just what we have fallen into.
Seeing an oubliette coming early is vital, as is the right response to avoid falling into it, is very easy to do. This translates identically into the world of contract negotiation:
Let’s say your credit department has it in its head that cross default is an important protection in a securities financing arrangement. This is a peculiar and idiosyncratic view, not shared by anyone in the market and lacking a solid base in common sense, but of such gems of incongruous conviction
Where you will go, taking the whole negotiation with you, the moment you nickel-and-dime on some tail-event risk management concern. You know, by reference to 1.3% of the rolling weighted average volume of the monthly mean rainfall on the Amazon basin etc.
It might jazz your risk colleagues, and it will doubtless appeal to your own Rube Goldbergian instinct — every transactional legal eagle has it, however deeply it will be buried, and it will overjoy your buyside counsel, and as you descend into the abyss, it will drive your clients up the wall.
See also
- ↑ An inter-affiliate stock lending agreement fell into an oubliette in Zurich in 2014 and none of the negotiators have been heard from since though, as far as anyone “on the outside” knows, discussions are still ongoing and progressing well.
- ↑ The Meaning of Liff: The Original Dictionary Of Things There Should Be Words For, by Douglas Adams and John Lloyd.