Litigation Strategy Settlement Negotiation

How to Guard Information During Negotiation

186300420If you’ve prepared well for a settlement negotiation, then you’ve already determined what information you won’t disclose to the other side. The trick is guarding that information in a way that doesn’t tip-off the other side to the fact that you’re being evasive.

Although it varies from case to case, there are categories of information that you may want to keep confidential. For example, it’s usually essential that you keep the other side guessing about your client’s reservation point (aka the “bottom line” or “walk-away price”).

You’ll also likely want to guard information about your client’s needs, constraints, or other reasons for settling. On the other hand, sharing this information may lead to value-creating opportunities that are only possible if both sides cooperate and share, so consider only guarding this information until after you get the other side to disclose their reasons for settling or you have reason to believe that your counterpart will be equally forthcoming about his or her client’s needs and interests.

And you’ll obviously want to keep any damaging facts private, noting that incomplete disclosure and nondisclosure of facts that would be reasonably necessary to correct a misleading statement may amount to actionable misrepresentation. See Randi W. v Muroc Joint Unified Sch. Dist. (1997) 14 C4th 1066, 1084.

So how do you go about guarding your secrets? Use deflection! Here are some effective techniques to try alone or in combination:

  • Answer with a question. Using a return question such as “Why do you ask?” or “Can you explain what you mean by that?” buys time to steer the conversation in a different direction. The key is to get the other party to answer your question. Once the other side has given you an answer, you have more flexibility to direct the train of thought toward a different subject.
  • Answer a different question. Answering a question that is slightly different from the one posed is another way of steering the conversation in a different direction.
  • Over-answer. Hide the true answer to the question among many alternative plausible answers without committing to any particular one. This can be achieved, for example, by giving an excessively detailed answer that emphasizes complexities, contingencies, or different ways of looking at the issue.
  • Openly refuse to answer, citing some explanation. A naked refusal to answer a question will arouse suspicions, so give an explanation that puts the refusal out of your power or control, such as legal privileges, honoring the client’s request to keep certain information private, protecting trade secrets.
  • Claim the question is irrelevant. Convince your counterpart that the issue or matter at hand can be resolved without answering the question; in other words, that giving an answer will not materially assist the negotiation.

Beware of misrepresentation. Misrepresentation is used by some negotiators to conceal sensitive or damaging facts. Before using it yourself, consider the ethical and legal injunctions, as well as the effect that your conduct may have on the outlook for settlement if your misrepresentation is later discovered by the other side.

Attorneys can never get enough negotiating tips, because there is always room to improve skills. Get much more practical advice on negotiation and case settlement in CEB’s California Civil Procedure Before Trial, chap 46.  Also check out CEB’s CLE program Overcoming Settlement Impasse, available On Demand.

Other CEBblog™ posts on negotiation skills:

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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