Deal School

Deal School: Meet and Confer

December 11, 2023

The term “meet and confer” has several meanings in the context of legal proceedings and contracts.

Outside of the scope of this post, the term describes a process that is often mandated in the context of lawsuits: a process by which the parties attempt to resolve the dispute without court action, for example, in connection with a filed motion.

Because our deal school series focuses on issues involved in structuring and documenting deals, this post looks at how “meet and confer” provisions might be incorporated into an agreement.

To be sure, in either the litigation or the deal context, the concept of a “meet and confer” is for the parties to try to work things out before resorting to more formal action.

In the context of a deal, a “meet and confer” is often found in provisions requiring the parties to discuss a claimed breach of the agreement before taking steps to initiate a formal dispute resolution process; for example, an agreement might require a “meet and confer” before moving to mediation, to arbitration, or to the filing of a lawsuit.

But there are other uses as well, such as mandating a “meet and confer” in an attempt to resolve an impasse that might otherwise lead to a party exercising termination rights under an agreement.

For example, in connection with an exclusive contract requiring a medical group to provide “all required services” within its specialty, for example, radiology, at a hospital, “all” might be tempered by way of a coverage matrix. And, the agreement might provide for stipend support based on that level of mandated coverage. So, what happens if the hospital later wants to expand the scope of coverage, either in terms of additional hours, days, or locations?

As an alternative to a provision that automatically increases the amount of support as the coverage matrix expands, the parties might incorporate a requirement that they “meet and confer” to adjust the amount of the stipend, with the failure to do so or the failure to come to agreement as to its amount leading to some type of quasi-for-cause termination right on behalf of the medical group.

As you might have already realized, in some situations, such as the one described involving coverage stipends, a “meet and confer” without real “meat” (the ability to trigger termination on short notice), makes the meet and confer just talk.

Additionally, other provisions are required to impose good faith participation, to ensure that the process takes place quickly and doesn’t last long, and so on, or the delay can be fatal to a party’s rights.

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