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When negotiating contracts, many conflict situations arise.  Here is a summary of conflict situations, and approaches to resolving conflicts. 

A conflict occurs when individuals have different perceptions, beliefs, and goals. 

Types of conflicts include:  (1)  intrapersonal conflicts that are internal to the individual, (2) interpersonal conflicts between two or more individuals, and (3) intergroup conflicts between an organizational structure independent of the individuals occupying the roles.

Approaches to resolving conflict include:  (1)  collaborating and identifying common ground to find mutually beneficial solutions for all parties, (2)  avoiding conflict altogether such as devising solutions to minimize interactions, (3) competing to win the conflict at another party’s expense, (4) accommodating to give completely to another side’s wishes, with no attention to one’s own interests, and (5) compromising to reach middle ground with another party where losses are offset by equally valued gains. 

Which of the resolutions to use depends on the conflict situation, and the leverage one party has over the other.  To win at another party’s expense may require conditions that can never be met resulting in a lack of trust.  Compromise may involve changing an organization’s standard procedures.  To accommodate completely to another may result in a breach of contract when terms are not possible to be met.  In most contract negotiations, the goal is not to overexert leverage to the detriment of the other party.  Rather, it is to conclude with an agreement that allows both sides to maintain a long term relationship. 

The following is for information purposes, and not meant to be legal advice.

In confidentiality agreements, should confidentiality breach be carved out of the limitaion of indirect damages?  When confidentiality is breached, are the only damages that results indirect damages? 

Compensatory damages are usually considered to be direct damages, though the distinction between direct and indirect damages is blurred.  Compensatory damages in the trade secret context have included profits and lost sales, damages from disruption to business, investment value of trade secret prior to misappropriation, loss of reputation, fair market value of the trade secret lost by disclosure, and costs for remedial measures taken to minimize damages from misappropriation.

Restitution is another damage often imposed where the misappropriation is a breach of a confidential or fiduciary duty.  Restitutionary awards have allowed a plaintiff to recover the defendant's profits, whether or not the profits represented losses to the plaintiff.  A plaintiff may also receive other unjust enrichment awards to recover expenses saved as a consequence of misappropriation.