It Is Being Recorded: Sentences to Never Say at the Negotiating Table

Czech law has no settlement privilege. What you say in settlement talks may one day be read out by a judge. Yet most people, lawyers included, talk at the negotiating table as though their words simply evaporated. They do not. This is a guide to what your sentences turn into two years later, in a courtroom.

¶ The myth of confidentiality

Let me start with what most business owners believe, because they have seen it on American television: that whatever is said in settlement talks is "off the record". Common-law systems really do have the without prejudice rule, under which communications made in a genuine attempt to settle are in principle inadmissible. That rule is what allows the parties to speak openly: to concede a weakness, float a compromise, or name the price at which they would walk away.

Czech civil procedure has nothing of the kind. Section 125 of the Code of Civil Procedure provides that any means capable of establishing the facts of the case may serve as evidence. Your e-mail proposing a settlement. The minutes of a meeting. The testimony of someone who sat at the table. The text message you sent at ten in the evening after your third beer. No provision says that something was said in an attempt to settle and therefore does not count.

The one real exception is formal mediation under Act No. 202/2012 Coll., and even there a detail almost nobody knows applies: the duty of confidentiality binds the mediator, not the parties. A registered mediator may not testify about what they learned unless all the parties release them from confidentiality (Section 9 of the Mediation Act), but the person who sat across from you can repeat your words to a court whenever it suits them, unless you expressly agreed on confidentiality. Even a contractual confidentiality clause has its limits. Breaching it gives rise to a claim in damages, but evidence already put before a court cannot be taken back out of the courtroom.

¶ And when it really is being recorded

The second layer gets discussed even less: a recording made without your consent. Section 86 of the Civil Code protects privacy and expressions of a personal nature, and as a rule nobody may record them without permission. Case law, however, weighs that protection against the right to a fair trial. A covert recording may be used in proceedings where it is the only or a decisive way of proving a right and the intrusion into privacy is proportionate. When two business people are negotiating a commercial dispute, which is professional dealing rather than anyone's private life, the courts are fairly generous in admitting such recordings.

I am not going to advise you to record. What I will tell you is more useful: always negotiate as if the other side were recording. It is the only assumption that costs you nothing if it turns out to be wrong.

¶ Anatomy of a quotable sentence

Over the years at negotiating tables I have sorted the sentences that come back to haunt people into three categories. Here they are, most common first:

Bravado is treacherous because it gains you nothing tactically. It convinced nobody and moved nothing; it merely got written down. You take on pure risk with no return.

Unintended admissions usually slip out while you are defending something else. You concentrate on point B and give away point A in passing. An opponent who knows how to listen does not write down what you assert at the table. They write down what you concede.

Conditional capitulation has a property people underrate: the conditional is the first thing anyone forgets. A settlement offer made without a protective form of words becomes an anchor you will never get below again, and at worst the other side will put it before the court as evidence that you acknowledged the basis of the claim.

¶ How to frame a concession so it is not an admission

None of this means you cannot make offers at the table. Without offers there is no deal. It means the offer has to be built so that it stands apart from the merits. In practice:

Always tie an offer to economics rather than to the facts. Do not say "we accept we owe something, let's discuss how much". Say "we consider the claim unfounded; the figure X reflects solely the price of the time and uncertainty a lawsuit would cost us". Legally, the difference is decisive. The first sentence can be read in court as an admission that the debt exists. The second is a commercial calculation nothing can be extracted from.

Put a time limit on the offer and say so out loud: "This proposal stands until the end of the month; after that we are talking about different numbers." Besides creating pressure, this shows that it was a one-off proposal for a deal and not a settled position on the merits.

And if you keep minutes of the meeting, which I always recommend (send the other side a summary the same day, because whoever writes the minutes writes the history), record the passages about offers expressly: "The parties discussed possibilities of an amicable resolution; no statement made in the course of these discussions constitutes an acknowledgement of the claim or any part of it." It is not bulletproof, but it is far better than nothing.

¶ When to concede a weakness on purpose

Now let me turn this around, because an honest guide cannot stop at "admit nothing". There is one situation in which a statement against your own interest is the strongest move you have, and I use it.

You do not build credibility at a negotiating table by saying "trust me". You build it by telling the other side something that works against you. When I say at a meeting "our claim has a weak spot, it is X, and we have priced it in", something remarkable happens: everything else I have said or will say carries more weight. Liars do not concede weaknesses, so someone who points out their own is believed about their strong cards too. The psychology of judgment has long described this mechanism (information that runs against the speaker's interest earns a credibility premium), and it works reliably.

But it has rules. The concession is made under control: a weakness I have chosen, in words I drafted in advance, to an extent I can live with on the record. Never in the heat of the moment, never under pressure from a question, and never a weakness the other side does not yet know about and would not find on its own. And never from a position that is weak overall. A concession is seasoning on a strong position; it cannot replace one. I cover the controlled concession in detail in Admitting a Weakness as a Weapon.

¶ The five-sentence checklist

Before every negotiation worth the name, I prepare five sentences in writing. I recommend you do the same. It takes twenty minutes and it is the cheapest insurance you will buy in the whole dispute:

You can improvise the rest of the negotiation. Not these five sentences.

¶ What to take away

In the Czech Republic, settlement talks come with no protective wrapper. Everything you say is potential evidence, and an opponent with a good memory or a good phone is a recording device. That is no reason to stay silent, only a reason to speak like someone who knows every word is going on the record. Strong positions do not suffer from that at all. Weak sentences do, and two years later in a courtroom you will see the difference.

On how the other side reads your conduct and what the judge makes of it, see Statutes are just the foundation: psychology and tactics in a legal dispute and The psychology of the parties: how a judge decides. Whether to head for the negotiating table rather than the courtroom in the first place is discussed in When to go to court and when to mediate.

Preparing the wording for a specific negotiation, including the sentences that must never be said, is part of our work in the War Room.