By Dena Falken
Say “without prejudice” in a negotiation and half the room flinches — as if an insult just landed. Nothing of the kind happened. Those two words are a shield, not a slap.
In common-law practice, marking a communication “without prejudice” signals that it belongs to a genuine attempt to settle a dispute — and that it generally cannot be thrown back at you in court as an admission. It is how lawyers speak candidly enough to actually resolve things.
But here is the cross-border trap I watch professionals fall into: the label is not magic, and it does not travel well. Courts look at the substance — was this truly a settlement attempt? — and civil-law jurisdictions may treat the same words very differently. I have seen executives paste the phrase onto ordinary business letters, believing it made the contents invisible. It does not. Used wrongly, it protects nothing and signals inexperience.
Two words. Real doctrine, real limits. Know both before you type them.
Dena Falken
Founder, Legal-Ease International
Author of Million Dollar Words — When One Word Costs Millions: https://www.amazon.com/dp/B0HMP9XZT1
More: https://www.amazon.com/author/denafalken.com
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