Overview

As a junior lawyer, I was told to prepare departures tables to help with contract negotiations but nobody taught me how.

In case it helps somebody starting out, I wanted to show what an example negotiation / departures table looked like and set out the best practices I’ve learned in my 7ish years as a projects lawyer.

This guide covers:

1. 1. why lawyers use negotiation tables and when are they appropriate (because sometimes they aren’t);
   2. how to set up a negotiation table; and
   3. how to update the negotiation table as negotiations progress.

I’ve also included a downloadable word version of the negotiation table at the end.

Why do we use a negotiation table?

Negotiation tables have the most value when they:

• • simplify the negotiation of grouped issues;

• • track the progress and reasoning behind negotiated positions (especially helpful when you need to get final execution approval from directors etc. who were not part of the day-to-day negotiations); and

• • identify and resolve certain issues practically beyond the drafting of the contract.

The main situations that I use them in are:

• • In government projects – they require the use of departures / negotiation tables in procurement processes (e.g. infrastructure and IT). This helps them assess competing bids, assign values to different departures, and ensure that there’s documentation of their decision-making in spending public funds.

• • Large-scale projects with complex documentation use negotiation tables to help group common issues, involve commercial / technical team members without diving into the contract, and track the status of issues that might not be best resolved by drafting.

Even though there are legitimate criticisms that negotiation tables can be duplicating work for lawyers and aren’t appropriate for all projects (especially smaller scale matters or shorter contract documents), they do have a role depending on the scale of the project.

But just like you wouldn’t use an industrial power tool for a home woodworking project, you’ll need to consider whether a negotiation table is more appropriate than just marking up and comment-bubbling a document.

How do we set up a negotiation table?

Here are the key elements of the negotiation tables I use:

1. 1. Item number
      Helps track the negotiations and cross-references between related departures (e.g. “refer to Item 6 above”).
   2. Reference
      Specific clause references to the documents saves time and focuses negotiations.
   3. Topic
      Provides a quick overview and helps identify related departures.
   4. Proposed departure
      Sets out the specific change(s) and reserved position(s) that Party A is requesting.
   5. Party A comments
      Sets out the reasoning behind the proposed departures and helps in identifying the party’s true concerns. It’s annoying to receive changes without reasoning, and knowing the concerns helps the parties find better alternatives in negotiations.
   6. Party B comments
      Sets out the response to the proposed departure along with reasoning for that response.
   7. Closed items
      These are shaded out to help focus on the live issues.
   8. Document status table
      Helps track the various versions of the relevant documents as well as the amendments that have been incorporated to date. It’s also helpful to track various drafting riders or separate workstreams (commercial / technical and financing discussions) that may pop up during negotiations.