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Editors’ Note: 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.
During the 2015 NBA Championship Finals, a best-of-seven series, the Golden State Warriors had been outplayed by the Cleveland Cavaliers in the first three games and were behind in the series two games to one. Heading into game four the media began speculating whether the Warriors would employ any new strategies going forward, and during a pre-game press conference the Warriors’ coach, Steve Kerr, was asked if he would be changing his starting lineup. Kerr responded no. But come game time there was a change in the starting lineup, and that change was credited with the Warriors’ subsequent win. After the game Coach Kerr sheepishly admitted, “I lied. No, I did. I mean, I lied,” and apologized to reporters for doing so. (Feldman 2015) His tone made it clear that he was not comfortable with lying, but he justified his actions by explaining that answering truthfully or being evasive would have tipped off the Cavaliers, and that championships are awarded on winning, not on being truthful to reporters.
Negotiators often find themselves in a similar predicament when faced with pointed questions. The choice is to be truthful, evasive, or deceptive. While most people want to be truthful, being truthful can lead to exploitation. Evasion keeps the speaker from lying, but it may signal to the questioner that the speaker is hiding something and this is an area for further inquiry. Being deceptive may help achieve a negotiator’s short term goals, but could lead to numerous legal and reputational troubles. When answering pointed questions, negotiators have to make their choice quickly and typically do so based on gut feelings instead of an analytical reflection on negotiation ethics.
Ethical questions are nothing more than questions of fairness to others. But where do we look to find these our notions of fairness and the appropriate treatment of others in the negotiation context? The first place to look is internal—our most basic moral understandings of right and wrong, which are molded into a larger set of social norms that tell us what conduct is acceptable in these circumstances. Am I supposed to share, or may I refuse? Whether I share or not, is there an appropriate way to do so?
Lawyers, on the other hand, gravitate to written rules and standards, so it is no surprise that the thought of ethics takes them to the rules for professional conduct. The ABA’s Model Rules of Professional Conduct, which have been adopted by all but one state, specifically address negotiation issues. These standards, which on their face appear to be straightforward, are not. Another place to look for standards is the law, the place where society sets the lowest level of acceptable negotiation behavior. In the negotiation realm, the law at question is the law of misrepresentation, commonly known as fraud.
Yet having three sets of potential standards to choose from—morals, rules and law—results in confusion surrounding claims of unethical conduct. The phrase “there is a difference between what is legal and what is ethical” suggests that one of the first two standards, social norms and professional rules, are being referenced. But is there a difference when it comes to negotiation ethics? And even if there is agreement on the standard, the question then becomes whether there is agreement on what that standard requires. These seemingly easy questions become surprisingly difficult and are the subject of the rest of this chapter.
Social norms are the rules of acceptable or appropriate behavior among individuals in groups or in society at large. They are informal unde...
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American Bar Association, Ethics Opinions 93-370 and 06-439.
American Bar Association, Model Rules 1.2(d), 1.6(b)(2), (3), and (6), 3.3, 4.1, and 8.4.
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Restatement (Second) Agency §348.
Restatement (Second) Contracts §162, 174, 175, and 176.
Restatement (Second) Contracts §§ 176.
Restatement (Second) Torts §§ 526, 538, 539, 551, 552, 552A, and 552B.
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