Contract Redlining Etiquette – Rule #2 on Silent Redlines

Redlining Etiquette During Contract Negotiations – Rule #2 on SilenceSilence is a powerful yet underutilized tool in negotiations. As discussed on my favorite podcast, Negotiate Anything, allowing room for silence after you ask the other side a question can help you notice subtle clues that you otherwise might have missed. On the other hand, being silent after someone has asked you a question can signal that you are thoughtful about your response.

In contract negotiations, the application of silence is unique because the process of redlining naturally slows down the conversation, allowing the parties time and space to provide thoughtful feedback via email. We certainly don’t want to use silence to slow contract negotiations down. In our line of work, the faster the negotiation, the better. But in specific scenarios, we can leverage silent redlines to help persuade the other side and negotiate contracts more effectively.

Rule #2 – Silent Redlines Can Be a Powerful Negotiation Tool.

When it comes to redlining etiquette, Rule #1 is to accompany redlines with explanatory comments. An exception to that rule begets Rule #2 – silent redlines can be a powerful negotiation tool.

There is an essential distinction between silence and silent redlines. “Silent redlines” refers to the intentional lack of an explanatory comment with your proposed change. It applies to instances where you added a redline but you did not include an explanatory comment. I am not suggesting that you remain silent on the contractual terms proposed by the other side – as that would imply you accept their language as-is.

The Exceptions

  • Like fine china, you should use this tactic sparingly. Reserve silent redlines for those rare instances where saying nothing is a better use of your time and will lead to a better result than saying something (or repeating the same thing) would. Also, using them too often can make you seem like a lazy contract negotiator. Or worse, one who does not respect the other side.
  • Don’t use silent redlines to piss the other side off. Use it to solve a problem or to get an important message across. A tarnished reputation can harm both you and your negotiation in the long run.
  • Don’t use them if they might be misunderstood or offensive to the other side due to cultural reasons. To illustrate, China is a listening culture, whereas America is a speaking culture. If your contract negotiations involve companies or negotiators from a different background than your own, be mindful of cross-cultural considerations.

A personal story from the author:

My dad, of Iraqi heritage, immigrated to the U.S. in the 1980s. He is the best storyteller. But he also takes long pauses in between his thoughts. When he pauses, I assume he’s done speaking and start talking or asking questions. Only for him to tell me, time and time again, “Baba, I’m not done talking. I’m thinking.” He’s definitely from a listening culture, whereas I am from a speaking culture. But we find ways to work together nonetheless!

For Example

There are times when words, as much as I love them, aren’t enough. Times in which being silent on a redline can be a powerful statement in and of itself.  Here are some examples:

  • When I sense a pattern-interrupt is needed to end a pointless or exhausting back-and-forth exchange of redlines over the same topic. The use of silent redlines allows the other party to bypass that redline (for now) and focus on other open items, creating more space to come up with a suitable solution. Although picking up the phone is a much better alternative.
  • When I already explained my reasoning in previous versions, but they were not properly addressed. Here, my silence communicates that I am not going to waste my time repeating myself again or that my position has not changed since the last draft. This tactic usually prompts the other side to provide a more substantive response to the comments they previously ignored.
  • When the original language is so offensive or out of the norm that I’m not going to bother justifying it. My silence in this instance communicates that you can’t pull one over on me or that I am not going to justify your behavior with a response.
  • When I don’t have enough information to provide a full explanation, but I know that I can’t accept their language as-is. Though usually, I prefer just to flat out ask to “please clarify.” In this case, my lack of a comment will likely prompt the other side to provide in-depth feedback to overcompensate for my lack of an explanation.

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Nada Alnajafi currently serves as Corporate Counsel for Franklin Templeton, a Fortune-500 global financial services organization. She has been practicing in-house for 11+ years and created Contract Nerds to connect with and serve the people who love contracts just as much as she does.

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