Section VII: Ethics and Morality
Employing any strategy or tactics at all in negotiation has ethical and moral elements, of course. This section discusses these elements from a truly broad set of perspectives. Beginning with a chapter on moral character and how it affects trustworthiness, particularly in organizational settings, the discussion next moves to an analysis that shows how morals, rules, and law may all treat the same situation, but in vastly different ways—and how understanding these can give you a better sense of how your counterpart thinks, by analyzing which choice he or she has made at a critical moment.
Underlying this kind of analysis, one would hope, would be some kind of ethical bedrock. This, from a philosophical perspective, is the subject of the next chapter. This is followed by a chapter on the use of psychology in an effort to negotiate ethically, and then a chapter on how fairness is perceived, particularly with an eye to fair processes as well as fair outcomes. The next chapter builds on this discussion from the perspective of international relations, arguing that even in these high-stakes settings it actually has been possible to get parties to think about core concepts of justice and fairness. Finally, a radical shift of setting: the last chapter in this section discusses how the increasing role of technology in negotiation creates new ethical dilemmas, for which very few negotiators are yet ready.
34. Moral Character and Trustworthiness in Negotiations
Taya Cohen
The author considers character as a key element in building trust. Yet she finds moral character to be a phenomenon somewhat independent of the “calculus-based” and “identification-based” concepts of trust discussed elsewhere in this volume by Roy Lewicki. Cohen argues that individuals can be assessed as having high or low moral character, and that high moral character is justly rewarded with the trust of others.
35. Negotiation Ethics
Art Hinshaw
Morals, rules, or law? The author shows how ethics in negotiation can be viewed through any of these three lenses—but they produce different results. So, how to decide, when it’s your case and your reputation at stake? Hinshaw works through a series of social norms, showing how people with different personality profiles tend to opt for one norm over another. He then uses these norms to demonstrate how a negotiator can assess whether a counterpart has opted for a cooperative approach, or a competitive or even a deceitful one. This is followed by analysis of how the rules applicable specifically to attorneys affect a lawyer’s possible choices, and in turn, a brief tour of the applicable and overarching law. In the end, however, Hinshaw concludes that the best advice overall for even a lawyer-negotiator is to listen closely to his or her own personal sense of ethics—and follow it.
36. The Ethical Bedrock under the Negotiation Landscape
Kevin Gibson
Your dilemmas as a negotiator fall into two basic sets, “what’s possible?” and “what’s right?” The first is treated by many chapters in this book. Here, from his philosopher’s background, Gibson writes about the influence of morality on negotiations, and how we can think more clearly about what’s the right thing to do. This chapter should be read in conjunction with Carrie Menkel-Meadow’s chapter on The Morality of Compromise.
37. Drawing on Psychology to Negotiate Ethically
Jennifer Robbennolt and Jean Sternlight
As negotiators seek to apply the legal and professional considerations that govern ethical decisions, they will inevitably be impacted by psychological factors. The authors review the research on “bounded ethicality” and find that even people who try to behave ethically can be led astray by psychological phenomena that cause them to unconsciously downplay and rationalize improper actions. Negotiators and organizations that are aware of this problem, however, can take steps outlined in the chapter to prevent themselves from inadvertently
acting unethically. This chapter should be read in conjunction with Hinshaw on Ethics, Cohen on Moral Character, and Rule on Online Ethics.
38. Perceptions of Fairness in Negotiation
Nancy Welsh
In all of negotiation there is no bigger trap than “fairness.” Welsh explains why: among multiple models of fairness, people tend to believe that the one that applies here is the one that happens to favor them. This often creates a bitter element in negotiation, as each party proceeds from the unexamined assumption that its standpoint is the truly fair one. Welsh argues that for a negotiation to end well, it is imperative for both parties to assess the fairness of their own proposals from multiple points of view, not just their instinctive one—and to consider the fairness of their procedures as well as of their substantive proposals.
39. Achieving Process and Outcome Justice in Negotiation
Lynn Wagner and Daniel Druckman
The authors argue that better outcomes result when negotiations incorporate principles of justice. They review evidence that when negotiators seek justice for all parties, in both the process and outcome senses of the term, the outcomes are more likely to be actually implemented. The authors contend that in major negotiations in particular, such as international conflicts, it has proven to be possible to get the parties to think about different concepts of justice and fairness, which allow in turn for a richer discussion of what should be done. This pays dividends far into the future. This chapter should be read in conjunction with Welsh on Fairness.
40. Ethical Dilemmas in Technology-Based Negotiation
Colin Rule
In this chapter, a leading expert on online negotiation and dispute resolution considers the new ethical challenges wrought by his field. Rule finds that the advent of technology as a routine element in all sorts of negotiations has introduced new questions about impartiality, competence, cost, accessibility, confidentiality, privacy, and even the possibility of systemic biases being built into software code. As yet, he argues, few negotiators are thinking about or even aware of most of these factors. Yet they increasingly affect how your case will be handled.
Underlying this kind of analysis, one would hope, would be some kind of ethical bedrock. This, from a philosophical perspective, is the subject of the next chapter. This is followed by a chapter on the use of psychology in an effort to negotiate ethically, and then a chapter on how fairness is perceived, particularly with an eye to fair processes as well as fair outcomes. The next chapter builds on this discussion from the perspective of international relations, arguing that even in these high-stakes settings it actually has been possible to get parties to think about core concepts of justice and fairness. Finally, a radical shift of setting: the last chapter in this section discusses how the increasing role of technology in negotiation creates new ethical dilemmas, for which very few negotiators are yet ready.
34. Moral Character and Trustworthiness in Negotiations
Taya Cohen
The author considers character as a key element in building trust. Yet she finds moral character to be a phenomenon somewhat independent of the “calculus-based” and “identification-based” concepts of trust discussed elsewhere in this volume by Roy Lewicki. Cohen argues that individuals can be assessed as having high or low moral character, and that high moral character is justly rewarded with the trust of others.
35. Negotiation Ethics
Art Hinshaw
Morals, rules, or law? The author shows how ethics in negotiation can be viewed through any of these three lenses—but they produce different results. So, how to decide, when it’s your case and your reputation at stake? Hinshaw works through a series of social norms, showing how people with different personality profiles tend to opt for one norm over another. He then uses these norms to demonstrate how a negotiator can assess whether a counterpart has opted for a cooperative approach, or a competitive or even a deceitful one. This is followed by analysis of how the rules applicable specifically to attorneys affect a lawyer’s possible choices, and in turn, a brief tour of the applicable and overarching law. In the end, however, Hinshaw concludes that the best advice overall for even a lawyer-negotiator is to listen closely to his or her own personal sense of ethics—and follow it.
36. The Ethical Bedrock under the Negotiation Landscape
Kevin Gibson
Your dilemmas as a negotiator fall into two basic sets, “what’s possible?” and “what’s right?” The first is treated by many chapters in this book. Here, from his philosopher’s background, Gibson writes about the influence of morality on negotiations, and how we can think more clearly about what’s the right thing to do. This chapter should be read in conjunction with Carrie Menkel-Meadow’s chapter on The Morality of Compromise.
37. Drawing on Psychology to Negotiate Ethically
Jennifer Robbennolt and Jean Sternlight
As negotiators seek to apply the legal and professional considerations that govern ethical decisions, they will inevitably be impacted by psychological factors. The authors review the research on “bounded ethicality” and find that even people who try to behave ethically can be led astray by psychological phenomena that cause them to unconsciously downplay and rationalize improper actions. Negotiators and organizations that are aware of this problem, however, can take steps outlined in the chapter to prevent themselves from inadvertently
acting unethically. This chapter should be read in conjunction with Hinshaw on Ethics, Cohen on Moral Character, and Rule on Online Ethics.
38. Perceptions of Fairness in Negotiation
Nancy Welsh
In all of negotiation there is no bigger trap than “fairness.” Welsh explains why: among multiple models of fairness, people tend to believe that the one that applies here is the one that happens to favor them. This often creates a bitter element in negotiation, as each party proceeds from the unexamined assumption that its standpoint is the truly fair one. Welsh argues that for a negotiation to end well, it is imperative for both parties to assess the fairness of their own proposals from multiple points of view, not just their instinctive one—and to consider the fairness of their procedures as well as of their substantive proposals.
39. Achieving Process and Outcome Justice in Negotiation
Lynn Wagner and Daniel Druckman
The authors argue that better outcomes result when negotiations incorporate principles of justice. They review evidence that when negotiators seek justice for all parties, in both the process and outcome senses of the term, the outcomes are more likely to be actually implemented. The authors contend that in major negotiations in particular, such as international conflicts, it has proven to be possible to get the parties to think about different concepts of justice and fairness, which allow in turn for a richer discussion of what should be done. This pays dividends far into the future. This chapter should be read in conjunction with Welsh on Fairness.
40. Ethical Dilemmas in Technology-Based Negotiation
Colin Rule
In this chapter, a leading expert on online negotiation and dispute resolution considers the new ethical challenges wrought by his field. Rule finds that the advent of technology as a routine element in all sorts of negotiations has introduced new questions about impartiality, competence, cost, accessibility, confidentiality, privacy, and even the possibility of systemic biases being built into software code. As yet, he argues, few negotiators are thinking about or even aware of most of these factors. Yet they increasingly affect how your case will be handled.
Section VII authors:
Taya R. Cohen, Ph.D., is an Associate Professor of Organizational Behavior and Theory at the Tepper School of Business at Carnegie Mellon University and the Carnegie Bosch Junior Faculty Chair. Cohen’s current research focuses on understanding moral character and how it influences behavior in organizations. Cohen’s 2014 paper Moral Character in the Workplace, published in the Journal of Personality and Social Psychology, won the Outstanding Article Award from the International Association for Conflict Management in 2016.
Daniel Druckman is Professor Emeritus of Public and International Affairs at George Mason University, an Eminent Scholar at Macquarie University in Sydney and an Honorary Professor at the University of Queensland in Brisbane. He has published widely on such topics as international negotiation, nationalism, peacekeeping, justice, the interplay between values and interests, and research methods. Two of his books, Doing Research: Methods
of Inquiry for Conflict Analysis (Sage 2005) and, with Paul F. Diehl, Evaluating Peace Operations (Lynne Reinner 2010) received the outstanding book award from the International Association for Conflict Management (IACM). He also received lifetime achievement awards from the IACM in 2003 and from the Novancia Business School in Paris in 2016.
Dr. Kevin Gibson trained with the Harvard Mediation Project, and has worked as a professional mediator. He was awarded his Ph.D. in philosophy in 1991, with a focus on values and social policy. Gibson’s research concentration is the study of ethics, widely understood as the way that we treat one another and the world around us. He is the author of two major textbooks: Introduction to Ethics (Pearson Press, 2013) and Business and Ethics: An Introduction (Cambridge University Press, 2007). He has also authored or co-authored more than thirty scholarly articles, and currently teaches at Marquette University.
Art Hinshaw is the John J. Bouma Fellow in Alternative Dispute Resolution, the Director of the Lodestar Dispute Resolution Program, and a Clinical Professor of Law at the Sandra Day O’Connor College of Law at Arizona State University. His research bridges dispute resolution theory and practice, and his teaching responsibilities include the Lodestar Mediation Clinic and Negotiation, among other courses. Professor Hinshaw is active in the dispute resolution community, having served on several academic and professional committees at the state and national levels, and he is a regular contributor to Indisputably, the ADR law professor blog.
Jennifer Robbennolt (J.D., Ph.D.) is Associate Dean for Research; Alice Curtis Campbell Professor of Law and Professor of Psychology; and Co-Director of the Program on Law, Behavior, and Social Science at the University of Illinois. A leading scholar in psychology and law, torts, and dispute resolution, her research integrates psychology and empirical research methodology into the study of law and legal institutions. She is co-author of
several books, including The Psychology of Tort Law; Psychology for Lawyers; a textbook on Empirical Methods in Law; and the influential casebook, Dispute Resolution and Lawyers.
Colin Rule is co-founder and COO of Modria.com, an Online Dispute Resolution provider based in Silicon Valley. From 2003 to 2011 he was Director of Online Dispute Resolution for eBay and PayPal. He is currently Co-Chair of the Advisory Board of the National Center for Technology and Dispute Resolution at UMass-Amherst and a Non-Resident Fellow at the Gould Center for Conflict Resolution at Stanford Law School. Colin is the author of Online Dispute Resolution for Business (2002) and (with Amy Schmitz) the forthcoming book The New Handshake: Online Dispute Resolution and the Future of Consumer Protection (American Bar Association 2017).
Jean R. Sternlight is the Michael and Sonja Saltman Professor of Law and also Director of the Saltman Center for Conflict Resolution at the University of Nevada—Las Vegas Boyd School of Law. Frequently cited by courts and the media, Sternlight has written numerous books and articles. She was named Outstanding Scholar by the ABA Section on Dispute Resolution in 2015, and also awarded the 2015 Lifetime Achievement Award by the American College of Civil Trial Mediators. Sternlight received her B.A. (High Honors) from Swarthmore College, and her J.D. (cum laude) from Harvard Law School.
Lynn M. Wagner received her Ph.D. from Johns Hopkins University’s School of Advanced International Studies (SAIS). She co-edited The Roads from Rio: Lessons Learned from Twenty Years of Multilateral Environmental Negotiations (2012) and authored Problem-Solving and Bargaining in International Negotiations (2008), among other publications. Wagner regularly observes and analyzes multilateral environmental negotiations through her work with the International Institute for Sustainable Development, where she serves as the Group Director of the SDG Knowledge program. Wagner has taught courses at SAIS and the University of Nevada, Reno, and has mediated disputes in the DC Superior Court System’s Multidoor Dispute Resolution Service.
Nancy A. Welsh is Professor of Law and Director of the Dispute Resolution Program at Texas A & M University School of Law. Her research focuses on the procedural justice provided by court- and agency-connected mediation, as well as the effect of institutionalized “alternative” processes on the legitimacy and mission of the courts. Professor Welsh mediates for the U.S. District Court of the Middle District of Pennsylvania and previously was a member of the Minnesota ADR Review Board, which developed and implemented rules governing the innovative ADR program adopted by that state’s courts. For 2016-17 she serves as Chair of the ABA Section of Dispute Resolution.
Taya R. Cohen, Ph.D., is an Associate Professor of Organizational Behavior and Theory at the Tepper School of Business at Carnegie Mellon University and the Carnegie Bosch Junior Faculty Chair. Cohen’s current research focuses on understanding moral character and how it influences behavior in organizations. Cohen’s 2014 paper Moral Character in the Workplace, published in the Journal of Personality and Social Psychology, won the Outstanding Article Award from the International Association for Conflict Management in 2016.
Daniel Druckman is Professor Emeritus of Public and International Affairs at George Mason University, an Eminent Scholar at Macquarie University in Sydney and an Honorary Professor at the University of Queensland in Brisbane. He has published widely on such topics as international negotiation, nationalism, peacekeeping, justice, the interplay between values and interests, and research methods. Two of his books, Doing Research: Methods
of Inquiry for Conflict Analysis (Sage 2005) and, with Paul F. Diehl, Evaluating Peace Operations (Lynne Reinner 2010) received the outstanding book award from the International Association for Conflict Management (IACM). He also received lifetime achievement awards from the IACM in 2003 and from the Novancia Business School in Paris in 2016.
Dr. Kevin Gibson trained with the Harvard Mediation Project, and has worked as a professional mediator. He was awarded his Ph.D. in philosophy in 1991, with a focus on values and social policy. Gibson’s research concentration is the study of ethics, widely understood as the way that we treat one another and the world around us. He is the author of two major textbooks: Introduction to Ethics (Pearson Press, 2013) and Business and Ethics: An Introduction (Cambridge University Press, 2007). He has also authored or co-authored more than thirty scholarly articles, and currently teaches at Marquette University.
Art Hinshaw is the John J. Bouma Fellow in Alternative Dispute Resolution, the Director of the Lodestar Dispute Resolution Program, and a Clinical Professor of Law at the Sandra Day O’Connor College of Law at Arizona State University. His research bridges dispute resolution theory and practice, and his teaching responsibilities include the Lodestar Mediation Clinic and Negotiation, among other courses. Professor Hinshaw is active in the dispute resolution community, having served on several academic and professional committees at the state and national levels, and he is a regular contributor to Indisputably, the ADR law professor blog.
Jennifer Robbennolt (J.D., Ph.D.) is Associate Dean for Research; Alice Curtis Campbell Professor of Law and Professor of Psychology; and Co-Director of the Program on Law, Behavior, and Social Science at the University of Illinois. A leading scholar in psychology and law, torts, and dispute resolution, her research integrates psychology and empirical research methodology into the study of law and legal institutions. She is co-author of
several books, including The Psychology of Tort Law; Psychology for Lawyers; a textbook on Empirical Methods in Law; and the influential casebook, Dispute Resolution and Lawyers.
Colin Rule is co-founder and COO of Modria.com, an Online Dispute Resolution provider based in Silicon Valley. From 2003 to 2011 he was Director of Online Dispute Resolution for eBay and PayPal. He is currently Co-Chair of the Advisory Board of the National Center for Technology and Dispute Resolution at UMass-Amherst and a Non-Resident Fellow at the Gould Center for Conflict Resolution at Stanford Law School. Colin is the author of Online Dispute Resolution for Business (2002) and (with Amy Schmitz) the forthcoming book The New Handshake: Online Dispute Resolution and the Future of Consumer Protection (American Bar Association 2017).
Jean R. Sternlight is the Michael and Sonja Saltman Professor of Law and also Director of the Saltman Center for Conflict Resolution at the University of Nevada—Las Vegas Boyd School of Law. Frequently cited by courts and the media, Sternlight has written numerous books and articles. She was named Outstanding Scholar by the ABA Section on Dispute Resolution in 2015, and also awarded the 2015 Lifetime Achievement Award by the American College of Civil Trial Mediators. Sternlight received her B.A. (High Honors) from Swarthmore College, and her J.D. (cum laude) from Harvard Law School.
Lynn M. Wagner received her Ph.D. from Johns Hopkins University’s School of Advanced International Studies (SAIS). She co-edited The Roads from Rio: Lessons Learned from Twenty Years of Multilateral Environmental Negotiations (2012) and authored Problem-Solving and Bargaining in International Negotiations (2008), among other publications. Wagner regularly observes and analyzes multilateral environmental negotiations through her work with the International Institute for Sustainable Development, where she serves as the Group Director of the SDG Knowledge program. Wagner has taught courses at SAIS and the University of Nevada, Reno, and has mediated disputes in the DC Superior Court System’s Multidoor Dispute Resolution Service.
Nancy A. Welsh is Professor of Law and Director of the Dispute Resolution Program at Texas A & M University School of Law. Her research focuses on the procedural justice provided by court- and agency-connected mediation, as well as the effect of institutionalized “alternative” processes on the legitimacy and mission of the courts. Professor Welsh mediates for the U.S. District Court of the Middle District of Pennsylvania and previously was a member of the Minnesota ADR Review Board, which developed and implemented rules governing the innovative ADR program adopted by that state’s courts. For 2016-17 she serves as Chair of the ABA Section of Dispute Resolution.