Negotiation Strategies and Document Modelling

The goal in document assembly is to “model” the transaction.  A Canadian attorney once explained to me, we don’t have forms and templates, we have document models, which contains structures and details.  Viewed from this perspective, the goal in template development is to build a better model of the ultimate transaction. The result is that negotiations are quicker, and more focused on concepts as opposed to crafty language.

A few years ago, I spoke to a Canadian attorney about my business … building expert systems and automated templates. After several fruitless attempts to make my self understood (templates, document assembly, form building), his face lit up with a smile … Yes, he said, you mean “document modelling”.  That what we call it up here.

Relieved that I had finally made myself understoods, I stopped to ponder the meaning of the word, “document modelling”.  It actually makes more sense.  Document assembly connote an “assembly line” at a factory where unskilled or semi-skilled labors trained in very narrow tasks, combine in a work flow process to produce a complex product, the design of which would be well beyond their individual capabilities, absent the “assembly” process.

Many lawyers, looking at document assembly software shrug their shoulders and grunt: “that’s paralegal work, why should I get involved.  If the paralegal or junior attorney has to work harder, all the more profits for me.  Sure, I will spend some money, getting them more productive, but it really isn’t worth my attention or time to expend much throught on it.

A Paradigm Shift

When you change the term to document modelling, the image of a meterioroligist or a seismologist comes to mind, carefully looking at the patterns of minute details, case studies, history, forces of nature and on that basis building a model into which data can be fed that will predict the next hurricane or earthquake.  An activity of that sore is worth the attention of a real specialist, one with great knowledge.  One doesn’t want a hack doing the weather prediction when one needs to plan a 200 person reception in the great outdoor.

Document modelling is what a good document assembly expert does; he or she looks at the documents, the patterns of variations, and extrapolates what would happen if …. The model and the options are built in anticipation of a specialist providing real data from which to then create a document.

Effect on Negotiations

One of the inherent weaknesses of document assembly tools is the ability to deal with “post assembly” revisions to the transactional document.  You can’t have your cake (of automation) and eat it to (be able to edit and reassemble).  This weakness, however, is a hidden strength in that the efficient use of a document assembly is to create a “best first draft” … A best first draft is define is a document that represents the understanding of all the parties, and not just the starting position of one of the parties.

The effect is that it forces negotiations to focus on “terms” and concepts, and not on “words”.  What is the structure that is acceptable to the parties; where does the risk lie; what is the reward; how is the revenue shared.  All of these are concepts that can be reduced to rules, facilitating a reassembly.  The better and more sophisticated the model, then the better the document.

A Side Effect

New Yorkers are known for “take no prisoners” negotiation style.  Despite years of “getting to yes” and the “art of negotiation” you still find people whose approach is screw first, and then back off.  These negotiations can be very wasteful.  Except in major contracts, the result is a major capital cost on the transaction that has no upside.

With document modelling, you can take the approach of a “First Best Offer”.  You start out in the middle because the drafting is designed to reflect what is fair in light of the business deal.  The document model tracks the term sheet, rather than the ideas of an attorney (not party to the initial negotiations) coming up with a model.