Attorneys routinely claim that their negotiating partners are acting in "bad faith."  But what does that mean?

In our recent Negotiation and Justice Survey, we asked our attorney, negotiator and mediator respondents (78 of them) to define bad faith in negotiations.  Having no authority to settle, refusing to listen to the other side, and failing to bring the decision makers to the negotiation are the most commonly cited instances of "bad faith" tactics in negotiation or mediation.

In response to our own formulations of potential bad faith negotiation tactics, the results were as follows:

A party lies about facts important to resolution                                      83%
A party lies about its "bottom line."                                                           23%
A party withholds information important to a "fair" deal.                      51%
A party refuses to compromise (with good reason)                              4.5%
A party refuses to compromise (without good reason)                       59.76%
A party doesn't compromise enough                                                        3.4% 

Here are all of the "unique" responses: 

1. stonewalling or frustrating the process unnecessarily 
2. acting out of a desire to punish the other or vindicate one's self
3. using the process for discovery
4. proceeding with no intention of exploring opportunities for settlement
5. taking advantage of a power imbalance which the mediator does not address and ameliorate
6. consciously taking advantage of the mediator's bias
7. negotiating unreasonably or intractably
8. prolonging the process by engaging in irrelevant conversation so that all parties are not given equal time
9. using hardball tactics meant to corner or trick the other party into submission
10. arriving unprepared and refusing to acknowledge it (2 separate comments)
11. threatening to engage in future unfair practices 
12. being unwilling to go through the entire process
13. asserting and maintaining an unreasonable position
14. failing to show up 
15. refusing to listen (5 separate comments)
16. refusing to provide necessary documents 
17. arriving with no settlement authority or without decision makers (6 separate responses) 
18. misrepresenting or mischaracterizing the client's case to one's own client
19. refusing to discuss interests
20. persisting in discussing positions
21. trying to bully the mediator or the other party