Negotiation Skills Flashcards

Under the BSB Handbook, which core duty is directly relevant to a barrister's conduct during negotiations with opposing counsel?

Answer: The duty to act with honesty and integrity and not to mislead

Core Duty 3 of the BSB Handbook requires barristers to act with honesty and integrity; this applies in negotiations, prohibiting false statements of fact to opposing counsel even where it would benefit the client.

Which of the following statements correctly describes the effect of 'without prejudice' privilege in settlement negotiations?

Answer: Genuine communications made in the course of settlement negotiations are protected from being adduced in evidence as admissions

Without prejudice privilege protects genuine settlement communications from being used in evidence as admissions of liability, encouraging parties to negotiate freely without fear that concessions will later be used against them.

During a negotiation, the opposing barrister makes an incorrect statement of law that would benefit your client if uncorrected. What is the correct course of action?

Answer: Correct the opponent's legal error, as a barrister must not take unfair advantage through another's mistake

A barrister must act with integrity and cannot take unfair advantage of an opponent's error; exploiting a clear legal misunderstanding would breach the BSB Handbook's requirements of honesty and fairness.

Which of the following constitutes a legitimate negotiation tactic that does not breach professional conduct rules?

Answer: Making a high opening offer to anchor the negotiation range in the client's favour

Anchoring with a high opening offer is a legitimate and widely used strategy; the other options involve misrepresentation or improper pressure that would breach the BSB Handbook's honesty requirements.

What is the primary significance of CPR Part 36 in the context of negotiated settlements?

Answer: It creates a formal offer mechanism with automatic costs consequences designed to incentivise realistic negotiation

CPR Part 36 allows parties to make formal offers to settle that trigger automatic cost consequences if the offer is not beaten at trial, creating powerful incentives for parties to negotiate realistically.

Which of the following is NOT a recognised form of Alternative Dispute Resolution (ADR) that a barrister advising on negotiation strategy should consider?

Answer: Summary judgment

Summary judgment is a court procedure under CPR Part 24, not a form of ADR; mediation, arbitration, and expert determination are all methods of resolving disputes outside full court proceedings.

Under the BSB Handbook, whose decision is it ultimately whether to accept or reject a settlement offer in civil proceedings?

Answer: The client, whose lawful instructions the barrister must follow even if the barrister would advise differently

It is the client's decision whether to accept a settlement; the barrister's role is to advise clearly on the merits and risks, but the client's lawful instructions must ultimately be followed.