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Issues lists
A well-written “issues list” can help manage a complex transaction. Jack Thrasher QC, a corporate partner at the Canadian law firm Osler, Hoskin & Harcourt LLP, explains what the list should contain.
What is an “issue list”?
An issues list is a document that identifies the relevant matters that must be agreed during the negotiation of a transaction, the parties’ respective positions on issues that have not been resolved, and the agreed resolution of issues that have been resolved.
What should an issues list contain?
An issues list should clearly describe each significant issue that arises in the course of negotiating a transaction, each party’s position on that issue, the current status of negotiations, and which individuals are responsible for resolving the issue.
Issues for negotiation should be grouped into specific areas dealing with a common subject matter.
An issues list should also identify realistic time frames for resolution of issues.
Where agreement is reached on resolution of an issue, the issues list should record the agreed resolution. These resolutions can, in turn, be fed into the document drafting process. Focussing on issues helps avoid the “warring drafts” syndrome – the draft documents become repositories for the parties’ agreements, not adversarial tools in their negotiations.
When should an issues list be drawn up?
It is helpful to create an issues list at the outset of negotiations – doing so brings a focus and discipline to the negotiating process and can serve as a road-map to the conclusion of the transaction.
The list can be used as a “tracking device” throughout the negotiations.
Issues lists are particularly helpful where multiple teams are involved in discrete areas of the negotiations.
Who should be responsible for drawing up and maintaining an issues list?
That will depend on how the negotiation of the transaction is structured. It may be in-house counsel, other client personnel, or outside counsel, depending on the circumstances.
What are the main benefits of an issues list?
Issues lists can be an effective method of managing and focusing negotiations.
They can be used to prioritise matters, develop strategies and delineate responsibilities. Creating and maintaining an issues list will often help “flush out” important points for debate, while forcing a party to clearly articulate its negotiating position. Such clarification can also reduce the time spent in discussing issues.
Issues lists can promote developing common ground on issues – when all parties state their position on an issue in writing, common elements of these positions are often more readily apparent.
What are some of the most common pitfalls of using an issue list?
It is important that the issues list does not become a drafting exercise or process in itself – it is intended to be an aid to negotiation and resolution of issues, not an administrative burden.
It must not be used as an adversarial device – e.g. describing one party’s positions in a favourable way and giving short shrift to the positions of other parties. It must be a “collective” tool to bring discipline and focus to the common interest in a successful process.
More generally, try to avoid parties setting up false issues that can be “given away” during negotiation. Also avoid the “trader mentality” – i.e. the view that if one party has its position accepted on a issue it “owes” the other party something on other issues. Unless a specific issue is an absolute deal breaker for a party, every issue has a solution that all parties can accept.
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