A lot of time and energy is spent arguing about who drafts the first version of a contract. If you write the first version, after all, you set the tone, the defaults and start the negotiation on your terms. That sounds like a win. And if you let someone else do it, then surely you’re going to be behind the 8-ball from the start – right?
Not always. Companies underestimate the strategic value of being pragmatic and relationship-focused when it comes to contracting. In my experience, who actually picks up the pen is rarely up for debate – in fact, it’s usually obvious right from the start. The bigger company, the one that does this type of deal all the time, or the one with the full legal team behind it, will almost always insist on drafting. That’s just how it goes.
So if you’re a growing business, I’d argue that spending precious time and goodwill fighting for the right to draft isn’t the best use of your capital. Instead, it’s better to focus on the things in the contract that really matter to you and that will make the deal work on the ground. And even if the other side is holding the pen, there are still lots of ways to secure what you and your business need to be successful in the long term.
Because, in my experience, long-term business success comes from building strong relationships – ones that work for both parties, that have a fairly apportioned risk and reward profile, that get the best of both partners, and that will, therefore, stand the test of time. And none of that depends on who drafts: it depends on the attitude you adopt and the approach you take.
Why giving up the pen doesn’t mean giving up control
There’s often a fear that if you don’t draft, you’ll end up stuck with a one-sided deal. But if the other side is determined to be heavy-handed, they’ll behave like that whether they’re reviewing your draft or sending theirs. The real question isn’t who writes first, but how both parties choose to approach the negotiation.
If the other business is open to balance and partnership, you’ll see that quickly, whoever drafts. If they’re not, you’ll see that too. Either way, arguing about the pen doesn’t change their mindset or help you understand how to work effectively with them.
For a scale-up, this shift in focus is especially important. Growth depends on building strong partnerships with suppliers, customers, tech providers and investors. Your contracts – and your approach to them – will shape and impact every one of those relationships.
If you treat contracts as weapons, the whole process becomes slower, more expensive and more hostile. But if you treat them as frameworks for making deals that work for both sides to build a long-term relationship, you get better outcomes.
Take intellectual property. For a tech company, protecting your IP might be the single most important thing in a deal. Whether you draft or not, what matters is that the contract clearly protects your rights and gives you space to grow without losing control of your core assets. That’s stuff you can only properly work out by discussing it openly and positively with the business you are partnering with, rather than by battering them round the head with tough legal talk.
Or look at data. Plenty of enterprise customers will insist on drafting their own terms, but the key question isn’t whether you wrote the first draft. It’s whether the end contract sets realistic responsibilities, avoids impossible liabilities, and has workable ways to deal with problems if they happen. Again, collaboration is needed to sort out, not combat.
Exit clauses are another one. I’ve seen too many young companies tie themselves into exclusivity that stops them from growing, or long notice periods that tie their hands at a point where they actually need to be flexible and adaptable. Time shouldn’t be burned worrying about who drafted. Instead, it should be put towards ensuring you both have the room you need to adapt and scale at the required pace. In the end, it’s much more effective to take an emotionally intelligent approach to your contracts, rather than a dogmatic one.
The trap of legal combat in contract negotiations
Traditional legal culture often falls back on combat metaphors: every point must be contested, every line held, every counterparty an opponent to defeat. That approach is slow, costly and corrosive. It creates enemies where you need partners. Rather than eyeing up the opportunities ahead, you’re eyeing up each other with suspicion and distrust. And for fast-growing companies, that’s an attitude you can’t afford.
Worse, it can mean the issues that make a difference to you on the ground get lost in the noise. Everyone gets hung up on boilerplate while the clauses that will actually make or break the deal – IP, data, delivery, pricing, exit – don’t get the attention they deserve. Or worse still, the deal might even fall apart altogether.
The more effective approach is to treat the contract as a tool for success, not a battleground. Start by considering the context of your proposed deal and the wider circumstances that apply to it, as all too often they dictate the dynamics of the overall relationship. Think about who’s bigger, who’s got the most financial resources, who’s doing the thing that is their bread and butter, and who’s having to be creative here. (AI can help you with that research)
It’s also advisable to take some time to build some rapport with your partner before you even think about the contract. Talk to them, get to know them a bit. Remember you are both people, not machines. After that, work together to discuss and build terms that reflect what both sides need, and that clearly work for each business. Don’t ask for anything that you wouldn’t accept if you were in their shoes. Make sure the big-ticket issues that matter to both your growth and to theirs – like IP, data, scalability and exit rights – are explored and worked out between you. That creates the strong foundations you both need.
Jointly agree on who from each business is going to have day-to-day responsibility for the relationship between you. Agree that those people will meet regularly, and that any issues will be raised and discussed promptly. That way, little niggles get caught and dealt with before they can become big issues.
Finally, don’t worry about trying to get the longest term or notice period you can for your agreement. After all, why would you want to be tied to someone who no longer wants to work with you? You want volunteers, not hostages. Instead, only ask for the notice period you’d need to be able to make alternative arrangements. After all, success will tie both businesses together much more strongly than any contract will.
Handled this way, contracts do what they’re meant to do. Deals close faster. The relationship strengthens. Issues get solved before they spiral. And you spend less money arguing and more on actually making the deal work, so that your business continues to grow and strengthen.
Long-term relationships, not short-term wins
None of this means being soft. Contracts are still about risk, responsibility and rights. But discussion can take the place of argument, explaining can replace defending. And focusing on the first draft is a distraction. The bigger prize is building relationships that are balanced and built to last, and long-term relationships like that don’t care who held the pen.
When both sides feel the deal is fair, they’re more likely to invest in it, more likely to work together when challenges come up, and more likely to stick around. That’s the kind of resilience you need if you’re growing fast.
So the next time you find yourself in a conversation about who’s holding the pen, ask a different question. What do we really need to make this deal succeed? How do we protect the things that matter most to our business while working together to build a strong relationship? How do we take the combat out of this?
Because in the end, it’s not who wrote the first draft that determines success. It’s whether you’ve built a contract – and a partnership – that stands the test of time.
Andrew Magowan is a lawyer at The Legal Director
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