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The Ethical Bedrock under the
Editors’ Note: 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.
Ethics in Negotiation
Negotiation approaches and personal attitudes vary widely and against a backdrop that promotes bargaining as optimizing personal gains some might think that anything goes. However, individuals are constrained not only by the threshold requirements of law but also by personal values that shape our conduct at the negotiating table.
The discipline of philosophy can help negotiators in two ways. First, it provides a set of time-tested principles that give us the conceptual framework and language to assess our actions. Secondly, it gives us benchmarks of acceptable behavior, which are particularly useful in novel or difficult cases when the law may give little or no guidance. Thus there are a number of reasons why we should think about values in an expansive way, and consider our personal morals and those we may encounter when there are incentives to act to maximize our immediate self-interest.
For instance, negotiators necessarily make decisions about the process they will use and the posture they will adopt to satisfy their needs, and those decisions will reflect personal values involving moral issues such as fairness, rights and justice. Similarly, parties rarely have full information about each other, and so they may be in a position to take advantage of a perceived deficiency, or to present information that may not be true. [NDR: Hinshaw, Ethics] They may also agree to a settlement that affects third parties—for example, they could externalize costs by putting them on some entity not present at the negotiation. [NDR: Wade-Benzoni, Future Generations] And there may be obvious opportunities to exploit someone’s ignorance or lack of power.
This chapter outlines three major ways that we can think about the morality of negotiation. First, the moral stance of the parties themselves should be taken into account. Second, we should note that individuals may approach negotiation along a spectrum from cooperation to zero-sum competition, and consequently we have to acknowledge the importance of the value-laden issues involved, such as trust, disclosure, or beneficence. Finally, we should recognize that private deal making is sanctioned against a societal backdrop that currently (at least in the U.S.) gives a lot of latitude to agreements as long as they are not unconscionable. Hence we ought to be aware of the way negotiation fits into the wider social and political context of justice, rights, equality, or welfare. [NDR: Welsh, Fairness]
Morality encompasses value-based decisions and behavior. Although the term ethics is formally the practice of critical assessment of morality, it is commonly used to describe behavior in defined roles or circumstances. For example, we could discuss the ethics of poker, where those playing the game acknowledge the specific rules and behavior involved. Given the nature of the game, bluffing and lying are allowed, and even become routine and expected ploys that take advantage of the opponents’ ignorance. At the same time, other behaviors are prohibited: it is unacceptable to play with marked cards or a confederate. This distinction is important, since some negotiators will consider their personal behavior to be compartmentalized into distinct spheres where they separate their everyday behavior from what they consider acceptable in a bargaining situation, especially if they are acting as a paid agent for a third party.
There is considerable literature that treats negotiation as an amoral game, where ethical concerns do not stand in the way of substantive gains.1 In a similar vein other writers have advocated that the only constraint on an attorney’s behavior in negotiation should be its legality.2 Given the prevalence of such approaches it is worthwhile to be aware of the nature of the techniques involved and the dynamics they set up. [NDR: Craver, Distributive Negotiation] Clearly, the aim in most of these tricks of the trade is to give one party an advantage in bargaining. Such....
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