December 3, 2025
Sarah thought she was doing the right thing when she informed her employer of her high-risk pregnancy. Instead, she was pushed out of her job and forced into a stressful legal fight. Eventually, worn down by the emotional toll and mounting pressure, she accepted a settlement offer, one that included a nondisclosure agreement (NDA) that would silence her from ever speaking about her experience. Reflecting on the decision, Sarah described feeling like she had no real choice, saying the enforced silence felt like “choking.”
Stories like Sarah’s challenge the common perception of NDAs as neutral or even empowering tools in dispute resolution. While high-profile cases—such as those involving celebrities or political figures—often portray NDAs as strategic and lucrative, the reality for many vulnerable individuals is quite different. In cases involving harassment, discrimination, or abuse, NDAs can function less like negotiated contracts and more like pressure-induced surrenders, particularly when plaintiffs face power imbalances and limited options.
In an article recently published with the George Washington Law Review, I introduce the concept of “high-risk civil settlements”: agreements where the imbalance of power, psychological pressure, and structural disadvantage call into question the voluntariness of the deal. The article argues that, under certain conditions, settlements that require plaintiffs to give up their voice and legal rights in exchange for a monetary payout can amount to coercion, especially when the defendant wields disproportionate power, threatens prolonged litigation, or uses information asymmetry to their advantage.
Unlike criminal plea bargains, which are subject to judicial scrutiny and procedural safeguards, civil settlements often happen in the shadows, without meaningful oversight. Courts typically uphold these agreements unless fraud or mutual mistake is involved, and legal representation alone doesn’t guarantee fairness, especially when principal-agent problems taint settlement negotiations.
By drawing parallels with the well-explored issue of coercion in plea deals, the article aims to bring attention to how civil plaintiffs may be similarly pressured into agreements they do not fully understand or consent to. It proposes a framework to help courts identify signs of coercion in civil settlements, such as time pressure, unequal bargaining power, and non-negotiable terms. The goal is not to discredit all settlements, but to challenge the legal presumption that they are inherently voluntary.
To address this issue, the article suggests a range of reforms, including the introduction of a civil equivalent to the criminal plea colloquy, a process that would ensure plaintiffs understand what they are giving up and are entering the agreement voluntarily. These reforms would be especially useful in jurisdictions that lack broader protections against abusive confidentiality clauses.
Ultimately, the article argues that failing to examine coercion in civil settlements allows private power to operate unchecked and undermines the fairness of our legal system. Silencing individuals like Sarah not only conceals misconduct; it may also reflect the coercion that forced them into silence in the first place.
For the full article, see: Gilat Juli Bachar, Coercive Settlements, 93 Geo. Wash. L. Rev. 733 (2025), Available at SSRN: https://ssrn.com/abstract=5409763
Gilat Juli Bachar is an Associate Professor of Law at Temple University Beasley School of Law.