Managing communications during a business dispute without weakening your position

A business dispute is, at its core, a situation where the record of what was said and agreed will eventually be reviewed by someone with authority to make a decision about it. That someone might be a mediator, an arbitrator, a judge, or just a very determined lawyer on the other side. The communications you send during the dispute become exhibits. They can support you or they can undermine you.

This guide is about managing your communications during a business dispute in a way that protects your position, not about winning arguments, but about not inadvertently losing ground. If the dispute is with a co-owner, see our guide to communicating with a difficult business partner.

Why every communication matters

In a business dispute, the communications that happen after the dispute arises can be as important as the original contract or agreement. A message sent in frustration at 11pm that appears to acknowledge fault can be as damaging as a poorly drafted contract clause. A message that misrepresents your position, even unintentionally, can create serious problems if the matter proceeds to litigation.

Courts in Australia generally treat business communications as documentary evidence. They can usually be requested by the other side during litigation (a process called discovery), and they tend to be read in full context, not just the parts you want to highlight. US courts work in a broadly similar way, and our guide to text messages as evidence in US courts explains the basics. The opposing lawyer’s job is to find in your messages the things that support their client’s case, so it helps to give them as little material as possible to work with. A lawyer can tell you how this applies to your own dispute.

Tone and content: the rules

The overarching principle is simple: write every message as if it will be read aloud in court. This sounds extreme, but it’s a useful discipline.

Tone

• Remain courteous and professional, regardless of what the other party says
• Do not match their emotional register: if they are angry, you are calm; if they are insulting, you are professional
• Do not use sarcasm, condescension, or humour that could be misread
• Do not express frustration, even if you are genuinely frustrated

Content

• Stick to facts: what happened, what was agreed, what the contract says
• Be specific about what you are seeking and what your position is
• Acknowledge receipt of their communications without necessarily agreeing with their characterisation
• Refer disputes to the relevant contractual mechanism (dispute resolution clause, mediation requirement) if one exists

What to never put in writing

This list is more important than the content guidelines above, because the damage that can be done by certain types of communications is much harder to undo than the benefit of a well-phrased message.

• Admissions of liability. “I know we made mistakes on this one” or “You’re right that we should have done better”. Even if your intent is to de-escalate, these create records that can be used against you.
• Speculation about the weakness of your position. “I’m not sure we can prove this” or “Our contract might not cover this situation.” Reserve this analysis for conversations with your lawyer.
• Partial settlement offers without legal advice. Offering to pay half the disputed amount, or proposing a resolution that involves conceding something, can sometimes be treated as a binding offer or an admission. Many people speak to a lawyer before putting any settlement proposal in writing.
• Personal attacks on the other party. Even if they are genuinely behaving badly, characterising them in your written communications as dishonest, incompetent, or malicious creates material that could be used against you.
• Threats of legal action you have not confirmed with a lawyer. “I’ll see you in court” sounds emphatic; it can also be read as an implicit admission that you don’t believe the dispute can be resolved otherwise, or as a threat that you’re not prepared to follow through on.
• Emotional content of any kind. Expressions of betrayal, disappointment, anger, or despair, even if entirely justified, weaken your appearance as a measured, credible party to a dispute.

Documenting the dispute

While managing your outgoing communications carefully, you also need to preserve everything coming in. A complete record of the dispute, including messages you find upsetting or that feel minor, may be significant evidence. A single channel with an automatic message archive makes this far easier.

• Forward all relevant emails to a secure personal or dedicated dispute account
• Preserve text messages and messaging platform communications with metadata
• Keep a contemporaneous log of any phone calls or in-person conversations: date, time, who was present, what was said
• Preserve the original contracts, invoices, scope documents, and any other foundational documents
• Do not delete anything, even messages that are unflattering to you

Legal professional privilege: what it covers and what it doesn’t

Legal professional privilege is a legal protection that generally means communications between a client and their lawyer for the purpose of legal advice are protected from disclosure in proceedings. In the US, the similar protection is called attorney-client privilege, and the details vary by state and court. This is important because it means you can speak frankly with your lawyer about your position, the weaknesses in your case, and settlement options without those communications becoming discoverable.

What privilege generally does not cover:

• Your regular business emails about the dispute, even if you’re discussing legal risks
• Emails that are copied to your lawyer alongside other people (this can waive privilege)
• Communications with third parties (accountants, other advisers) unless a lawyer is specifically involved and the purpose is legal advice
• Anything you’ve already voluntarily disclosed

This is why it’s important to route sensitive discussions through your lawyer rather than by email to colleagues or the other party.

When to stop communicating directly

There comes a point in some disputes where direct communication between the parties does more harm than good. The signals that you’ve reached that point include:

• Legal proceedings have been commenced or are clearly imminent
• The other party is represented by a lawyer and communicating through them
• Direct communications have broken down completely into abuse or threats
• Every exchange generates new disputed content rather than moving toward resolution
• Your lawyer has advised you to stop communicating directly

Once you stop communicating directly, communications usually go through your lawyer. If the other party contacts you directly after you’ve instructed a lawyer, many people pass the message to their lawyer rather than replying themselves. If some direct contact still has to continue, our guide to hostile business communication tools covers the options.