Liability for bad faith negotiations to settle a civil dispute: a conflict between the values of justice and conciliation?

Abstract

The principle of confidentiality and the rules of culpa in contrahendo applicable to contract negotiations shall also apply to negotiations aiming to settle a dispute, including mediation: their participants have an obligation to act in good faith. However, failure to inform the other party regarding its rights and obligations on the merits of the dispute and the validity of its legal position will not be a violation of this obligation unless there was deceit. As an exception to the general principle of confidentiality, a party should have the right to refer to information and documents obtained during negotiations (including mediation) to prove the dishonest behavior of the other party. In the interests of facilitating reconciliation, the possibility of disclosing in court information about how parties behaved in negotiations and mediation should be limited to exceptional cases. It is promising to develop rules of ethics for negotiators, including parties and their representatives in mediation and other negotiations.