Contract Negotiation Tip 010 | Zen & Contracts
What does Zen have to do with contract drafting and negotiation? The answer is “nothing.”
For the student of Zen, achieving a state of mind, empty of thought, unlocks unlimited creative potential. When drafting a complex commercial contract, start with the nothingness of a blank computer screen, as opposed to a one-size-fits-all template.
Type out everything you expect to get out of the deal, leading with the ‘must have’ terms. Then build out the proposed contract around this framework, importing template language where it fits and modifying it as necessary.
By starting with the bullseye drawn in the center of nothing, and drafting outwardly, you’re proposed contract captures your most important corporate interests.
A classic 1970 book, Zen Mind, Beginner’s Mind, by Shunryu Suzuki (1905-1971), helped grow the influence of Zen philosophy in the West.
“If your mind is empty, it is always ready for anything; it is open to everything. In the beginner’s mind there are many possibilities; in the expert’s mind there are few.” Shunryu Suzuki
The book teaches a simple meditation technique for developing “beginner’s mind” which, like an empty computer screen, does not presuppose anything. All things are possible when we begin from nothing. By contrast, Shunryu Suzuki’s “expert’s mind” can be likened to a recycled form contract that presupposes many things and hinders creativity.
When the strategist starts by outlining the ‘must have’ terms against an empty screen, there are many corporate opportunities. In the Zen philosophy, nothingness, or emptiness, truly is something. This type of nothingness is the universal energy which looks empty but is the generator of everything.
When writing these key terms, let them flow in natural language. Bullet points can be used to capture the most important elements of the deal as they spring from nothingness. Don’t struggle with legal jargon or eloquence. Refine them into solid contract language later. Enter negotiations with this laser focused document.
Form contract language has an important role, but never start there. First, consider the objectives of the parties in light of their strengths and weaknesses. As key elements are outlined related issues such as commercial risk and performance guarantees come to mind and are quickly captured.
The contract is woven outwardly from its commercial roots. Boiler plate general terms can be added at the end, but only after being carefully vetted and modified to get rid of inconsistencies, and undesirable or irrelevant language.
Although the best practice is to have a qualified legal practitioner draft and review commercial agreements, that’s not a luxury all companies can afford. More and more business are turning to template contracts purchased from online vendors of commercial forms. Both lawyer and layman who make use of standard form contracts should never treat them as fill-in-the-blank questionnaires.
By specifically setting out the key terms under the heading ‘Special Terms,’ the most important stuff can be distinguished from boiler plate. Courts, when interpreting contracts, will favor ‘Special Terms’ over ‘General Terms.’ All other things equal, a clause written by one of the parties will prevail over a conflicting clause downloaded from the internet.
When drafting a proposed contract during the negotiation phase remember the Zen concept of nothingness. In that space a true expression of the intent of the parties, and your corporate interests, can be generated. Then add carefully selected and appropriately modified form language to make the contract complete.
Kevin Walsh
Lead Attorney & Owner
