Negotiation can be about a lot of things. A great attorney that I know, he is now retired, once said that the most difficult thing to overcome in a negotiation is a good reason for something. A good reason – one that can be articulated so that the other side recognizes it as self-evidently rational – will often (very often) trump the power, the money and the clever posturing.

Back to forms for a moment: Provisions in forms, especially widely used and accepted forms are often there because they address in an appropriate way some basic commercial issue. In effect, there is usually a good reason that can be articulated for a particular provision in a form. If you want to deviate from the well worn path, do so, but know why you are doing it, understand the underlying commercial issue and be able to articulate your concern in a way that the other side will find compelling. Blind adherence to forms is not generally a good idea, but neither is wanton disregard for accepted norms.

So what do you do when someone (the other side’s attorney or your attorney for that matter) asserts that some provision is not "normal"? This is truly a sticky wicket. You probably don’t know what normal is and now you have to supposed experts (each with an opposing agenda) making contrary assertions. This situation arises with some degree of frequency. One way to consider the problem is to try to understand the underlying commercial issue. Often merely articulating the reason for the particular provision in layman’s language will make the relative merits of the positions clear to you (and to the business person with whom you are negotiating).

By the way, you sometimes you will have to suck it up and give on something you have a good reason for just to get the deal done. If that happens, well so be it. I am back to where I began, negotiation can be about a lot of things – living to fight again another day is often one of them.