bad faith settlement negotiations

September 12, 2023

Understanding Bad Faith Settlement Negotiations and Your Rights

Table of Contents

In the realm of legal negotiations, trust and transparency are paramount. Parties involved expect a certain level of honesty and openness when coming to the table to discuss terms, be it for a business deal, a settlement, or any other contractual agreement. However, not all negotiations are conducted with such integrity. Enter the concept of “bad faith settlement negotiations.” This term, often thrown around in legal circles, is crucial for anyone involved in negotiations to understand, as it can significantly impact the outcome of a deal and one’s rights. In this article, we’ll delve deep into the intricacies of bad faith settlement negotiations, shedding light on its various facets, the implications of being involved in one, and how one can safeguard their interests against such practices. Whether you’re a seasoned negotiator or someone just getting their feet wet in the world of legal agreements, this guide will equip you with the knowledge you need to navigate the often murky waters of bad faith negotiations.

Bad faith” is a term deeply rooted in the legal lexicon, signifying the intent to deceive or act dishonestly during dealings or negotiations. Within the scope of settlement negotiations, bad faith suggests that one party isn’t genuinely striving for a just and reasonable agreement. Instead, they might employ deceptive strategies, withhold pivotal information, or deliberately stall the negotiation process.

At its essence, bad faith breaches the foundational principle of good faith and fair dealing, an implicit aspect of most contractual engagements. This principle anticipates all involved parties to act with honesty and not sabotage the negotiation process or the contract’s execution. When a party exhibits bad faith, they contravene this principle, potentially leading to legal repercussions and a trust breakdown.

Examples of Bad Faith Negotiation

When we talk about bad faith in negotiations, it’s essential to understand its manifestations. Recognizing these signs can be the key to safeguarding one’s interests. Here are some common examples of bad faith negotiation:

  • Withholding Information: One of the most prevalent forms of bad faith is when a party intentionally withholds crucial information that could influence the outcome of the negotiation.
  • Constant Delays: Intentionally stalling the negotiation process, either by frequently rescheduling meetings or by taking an excessive amount of time to respond, can be a sign of bad faith.
  • Shifting Goalposts: If one party continually changes their demands or conditions, especially without a valid reason, it can indicate they’re not genuinely interested in reaching a fair agreement.
  • Misrepresentation: Providing false information or misrepresenting facts during negotiations is a clear indication of bad faith.
  • Refusal to Compromise: While negotiations often involve hard stances, an outright refusal to consider any form of compromise, especially when it’s reasonable, can be a sign of bad faith.

Understanding these signs is the first step in ensuring that you’re not on the receiving end of a bad faith negotiation. It’s always advisable to approach negotiations with caution, ensuring that all parties are transparent and genuinely invested in reaching a mutually beneficial agreement.

The Two Types of Bad Faith

In the legal landscape, bad faith is not a monolithic concept. It’s categorized into two primary types, each with its distinct characteristics and implications:

  • Subjective Bad Faith: This type revolves around the internal mindset of a party. It’s characterized by a party’s intentional deceit, dishonesty, or malice in their dealings. For instance, if a party enters a negotiation with no real intention of reaching an agreement but merely wants to waste the other party’s time, they are acting in subjective bad faith.
  • Objective Bad Faith: This type is more about the external actions of a party rather than their internal intentions. Objective bad faith occurs when a party’s actions, viewed from an outsider’s perspective, appear dishonest or deceitful, even if the party believes they are acting in good faith. For example, consistently offering terms that are widely recognized as unfair, even if the party believes they are reasonable, can be seen as objective bad faith.

Distinguishing between these two types is crucial. While subjective bad faith is more about intent, objective bad faith focuses on actions. Both can have significant legal consequences, and understanding them can help parties navigate negotiations more effectively.

Evidence and Determination of Bad Faith

Identifying bad faith can sometimes be a challenge, especially when dealing with parties skilled in concealing their true intentions. However, certain indicators and evidence can help in determining whether a party is acting in bad faith:

  • Documented History: A party’s past behavior in similar negotiations can serve as evidence. If they have a track record of deceitful practices or have been previously accused of bad faith, it can be a red flag.
  • Inconsistent Statements: If a party provides conflicting information at different stages of the negotiation, it might indicate an attempt to deceive or mislead.
  • Unreasonable Demands: Making demands that are far from industry standards or widely recognized as unfair can be evidence of bad faith.
  • Avoidance Tactics: Evading direct questions, refusing to provide essential information, or being generally unresponsive can be indicative of bad faith.
  • Third-Party Testimonies: Sometimes, third parties involved in the negotiation, such as mediators or witnesses, can provide insights or testimonies that highlight a party’s bad faith actions.

Determining bad faith often requires a combination of objective evidence and subjective judgment. It’s essential to be vigilant, gather as much information as possible, and consult legal experts when in doubt. Recognizing bad faith early can save time, resources, and potential legal complications down the line.

The Implications of Bad Faith Contracts

Contracts are the bedrock of many professional relationships and business dealings. When entered with clear terms and mutual understanding, they foster trust and predictability. However, when bad faith taints the contract’s formation or execution, it can lead to a myriad of complications:

  • Voidability: A contract formed under bad faith can be voided or declared invalid. For instance, if one party was misled or deceived into agreeing to the contract’s terms, they might have grounds to nullify the agreement.
  • Legal Consequences: Engaging in bad faith can lead to legal repercussions, including lawsuits for damages. If a party suffers financial or other losses due to another party’s bad faith actions, they can seek compensation through legal channels.
  • Reputational Damage: Beyond legal consequences, parties found to be acting in bad faith can suffer significant reputational harm. Trust is hard to rebuild, and once a party is labeled as deceitful or untrustworthy, future negotiations and business relationships can be adversely affected.
  • Strained Relationships: Bad faith actions can strain or entirely sever professional relationships. The mistrust and animosity resulting from deceitful actions can make future collaborations or negotiations nearly impossible.

It’s worth noting that not every disagreement or contract dispute is a result of bad faith. Sometimes, genuine misunderstandings or differing interpretations of contract terms can lead to conflicts. However, when bad faith is evident, it’s crucial to address it promptly and seek legal counsel to understand one’s rights and potential remedies.

While negotiations are often seen as a dance of offers, counteroffers, and strategic moves, there’s an underlying expectation of honesty and integrity. When a party breaches this trust by negotiating in bad faith, the legal system provides avenues for recourse:

  • Suing for Damages: If a party suffers losses due to another’s bad faith negotiation tactics, they can sue for damages. This might include compensation for wasted time, resources, or any financial losses incurred as a direct result of the deceitful negotiations.
  • Specific Performance: In some cases, a court might order the party acting in bad faith to fulfill their end of the agreement, especially if monetary compensation isn’t deemed sufficient.
  • Criminal Implications: While rare, there are instances where negotiating in bad faith can lead to criminal charges, especially if the deceitful actions involve fraud, misrepresentation, or other illegal activities.
  • Contract Nullification: As mentioned earlier, contracts formed under the shadow of bad faith can be declared null and void. This means the contract loses its binding nature, freeing the wronged party from any obligations under it.
  • Mediation or Arbitration: Before heading to court, parties might be advised to seek mediation or arbitration. These alternative dispute resolution methods can help resolve issues without the need for a lengthy court battle. However, if one party is found to be acting in bad faith, it can influence the mediator’s or arbitrator’s decision.

It’s essential to remember that the legal landscape varies by jurisdiction. What might be considered bad faith in one region might not be viewed the same in another. Therefore, always consult with local legal experts when faced with potential bad faith negotiations.


What constitutes bad faith in a negotiation?

Bad faith in a negotiation typically involves deceptive practices, withholding crucial information, intentional delays, or any action that undermines the genuine intent of reaching a fair agreement.

How can I prove that the other party negotiated in bad faith?

Proving bad faith often requires a combination of objective evidence, such as documented history, inconsistent statements, and third-party testimonies, along with subjective judgment based on the party’s behavior and intent.

Are there legal remedies available if I’m a victim of bad faith negotiations?

Yes, victims of bad faith negotiations can sue for damages, seek specific performance of the contract, or even nullify the contract. The exact remedy will depend on the nature of the deceit and the jurisdiction’s legal framework.

Can a contract formed under bad faith still be binding?

While contracts formed under bad faith can be declared null and void, it’s not automatic. The wronged party would typically need to take legal action to challenge the contract’s validity.

Is bad faith limited to contractual negotiations?

No, while bad faith is commonly discussed in the context of contractual negotiations, it can manifest in various other scenarios, including business dealings, insurance claims, and even interpersonal relationships.


Navigating the complex world of negotiations requires skill, patience, and a keen understanding of both the overt and covert dynamics at play. While most parties approach the table with genuine intentions, the specter of bad faith negotiations is a reality that cannot be ignored. Recognizing the signs, understanding the implications, and being equipped to address such situations are crucial for anyone involved in contractual agreements or negotiations.

If you ever find yourself questioning the integrity of a negotiation or suspecting bad faith, it’s essential to act promptly. Seek legal counsel, gather evidence, and protect your interests. Remember, in the realm of negotiations, knowledge is power.

For those seeking further assistance or guidance on bad faith settlement negotiations or any other legal concerns, Callender Bowlin is here to help. Reach out to us at (713) 364-1128, and let our team of experts guide you through the intricacies of the legal world.