Whats FairEthics for Negotiators

Edited by

Carrie Menkel-MeadowGeorgetown University Law Center

Michael WheelerHarvard Business School

S S

969168 FM.qxd 1/23/04 3:56 PM Page i

Innodata0787973637.jpg

969168 FM.qxd 1/23/04 3:56 PM Page x

Whats FairEthics for Negotiators

Edited by

Carrie Menkel-MeadowGeorgetown University Law Center

Michael WheelerHarvard Business School

S S

969168 FM.qxd 1/23/04 3:56 PM Page i

Copyright 2004 by John Wiley & Sons, Inc. All rights reserved.

Published by Jossey-BassA Wiley Imprint

989 Market Street, San Francisco, CA 94103-1741 www.josseybass.com

No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photo-

copying, recording, scanning, or otherwise, except as permitted under Section107 or 108 of the 1976 United States Copyright Act, without either the prior

written permission of the Publisher, or authorization through payment of theappropriate per-copy fee to the Copyright Clearance Center, Inc., 222 Rosewood

Drive, Danvers, MA 01923, 978-750-8400, fax 978-646-8600, or on the web at www.copyright.com. Requests to the Publisher for permission should be addressed to the Permissions Department, John Wiley & Sons, Inc., 111 River Street, Hoboken, NJ 07030, 201-748-6011, fax 201-748-6008,

e-mail: permcoordinator@wiley.com.

Jossey-Bass books and products are available through most bookstores. To contact Jossey-Bass directly call our Customer Care Department within theU.S. at 800-956-7739, outside the U.S. at 317-572-3986, or fax 317-572-4002.

Jossey-Bass also publishes its books in a variety of electronic formats. Somecontent that appears in print may not be available in electronic books.

Library of Congress Cataloging-in-Publication DataWhats fair : ethics for negotiators / edited by Carrie-Menkel Meadow,

Michael Wheeler. 1st ed.p. cm.

Includes bibliographical references and index.ISBN 0-7879-6916-8 (alk. paper)

1. NegotiationUnited States. 2. NegotiationMoral and ethicalaspects. I. Menkel-Meadow, Carrie. II. Wheeler, Michael, 1943-

KF9084.Z9W493 2004174.4dc22

2003024914

Printed in the United States of AmericaFIRST EDITION

HB Printing 10 9 8 7 6 5 4 3 2 1

969168 FM.qxd 1/23/04 3:56 PM Page ii

http://www.josseybass.comhttp://www.copyright.com

iii

CONTENTS

Preface vii

Acknowledgments xi

Introduction: Whats Fair in Negotiation? What Is Ethics in Negotiation? xiiiCarrie Menkel-Meadow

Swimming with Saints/Praying with Sharks xlvMichael Wheeler

PART ONE: OVERVIEW

1 Three Ethical Issues in Negotiation 5David A. Lax, James K. Sebenius

2 Ethical and Moral Issues 15Howard Raiffa

3 Negotiation Analysis 19Howard Raiffa

4 A Code of Negotiation Practices for Lawyers 23Roger Fisher

5 The Limits of Integrative Bargaining 30Gerald B. Wetlaufer

6 Bargaining with the Devil Without Losing Your Soul: Ethics in Negotiation 57G. Richard Shell

S S

969168 FM.qxd 1/23/04 3:56 PM Page iii

PART TWO: TRUTH TELLING IN NEGOTIATIONS

7 Truthfulness, Deceit, and Trust 79Sissela Bok

8 Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation 91James J. White

9 Promoting Honesty in Negotiation: An Exercise in Practical Ethics 108Peter C. Cramton, J. Gregory Dees

10 On the Ethics of Deception in Negotiation 138Alan Strudler

11 Deception and Mutual Trust: A Reply to Strudler 157J. Gregory Dees, Peter C. Cramton

12 The Lawyers Obligation to Be Trustworthy When Dealing with Opposing Parties 168Geoffrey C. Hazard, Jr.

13 Curtailing Deception: The Impact of Direct Questions on Lies and Omissions 175Maurice E. Schweitzer, Rachel Croson

PART THREE: BARGAINING TACTICS

14 Negotiating Tactics for Legal Services Lawyers 205Michael Meltsner, Philip Schrag

15 Smart Negotiating: How to Make Good Deals in the Real World 212James C. Freund

16 Ethical and Unethical Bargaining Tactics: An Empirical Study 221Roy J. Lewicki, Robert J. Robinson

17 Is Business Bluffing Ethical? 246Albert Z. Carr

PART FOUR: NEGOTIATING RELATIONSHIPS

18 The Ethics of Respect in Negotiation 257Jonathan R. Cohen

19 Everyday Negotiation: Navigating the Hidden Agendas in Bargaining 264Deborah M. Kolb, Judith Williams

IV CONTENTS

969168 FM.qxd 1/23/04 3:56 PM Page iv

20 Bargaining and the Ethics of Process 270Eleanor Holmes Norton

PART FIVE: NEGOTIATION AND AGENTS

21 Professional Detachment: The Executioner of Paris 305Arthur Isak Applbaum

22 The Professionalism and Accountability of Lawyers 329Murray L. Schwartz

23 A Causerie on Lawyers Ethics in Negotiation 350Alvin B. Rubin

PART SIX: SOCIAL INFLUENCES AND IMPACTS

24 Lies for the Public Good 371Sissela Bok

25 Does Studying Economics Inhibit Cooperation? 383Robert H. Frank, Thomas Gilovich, Dennis T. Regan

26 Half-Truths: Protecting Mistaken Inferences by Investors and Others 397Donald C. Langevoort

27 Mindfulness in the Law and Alternative Dispute Resolution 440Scott R. Peppet

28 Protecting the Confidentiality of Settlement Negotiations 454Wayne D. Brazil

29 Settlements and the Erosion of the Public Realm 486David Luban

30 Public Access to Private Settlements 507Carrie Menkel-Meadow

31 Expanding the Ethical Obligations of the Mediator: Mediator Accountability to Parties Not at the Table 513Lawrence Susskind

Bibliography 519

The Contributors 526

Index 529

CONTENTS V

969168 FM.qxd 1/23/04 3:56 PM Page v

To our inspiring friend and colleague Larry Susskind whose teaching, writing, and practice all continue

to advance the greater good

S

S S

969168 FM.qxd 1/23/04 3:56 PM Page vi

vii

PREFACE

This is a book about how we should treat each other when we work withothers to accomplish something. As two scholars, teachers, and practition-ers of negotiation for close to two lifetimes of work, we came to this proj-ect because we felt that the issues of how people should deal with each otherin negotiation were treated implicitly or secondarily in our major texts too often.As those texts and other writings about negotiation have proliferated in the pasttwo decades, we noticed that often simplified oppositions of principled problem-solving or integrative bargaining to competitive, distributional, or zero-sum negotiating assumed similarly oppositional ethical precepts. Cooperationand trust, in search of joint gain, often assumes openness and sharing of infor-mation, equality of power or relationships between the parties, and goodwill onboth sides. Competitive negotiations require hardball tactics and suspicion whendealing with parties on the other side, assumed to be taking advantage of us.Although both of us are clearly members of the joint gain, problem-solvingassociation of negotiation academics, we undertook this project because, as withmost other things that academics look at, we saw the complexities of the ethicsissues when we asked ourselves, our students, and real-world negotiators,Whats fair in negotiation?

In working with the many wonderful people who have made this book a real-ity, we learned that it is not true, as in love and war, that alls fair (and really,we do not think alls fair in love and war, either). We decided to compile thisbook about what is fair in negotiation because we know that so many wise and

S S

969168 FM.qxd 1/23/04 3:56 PM Page vii

savvy people have reflected on these questions in many different contexts andhave explored the many diverse dimensions of answers to profound ethicaldilemmas that we face every day. And because we are both teachers of negoti-ation in theory and practice, we were committed to focusing on what happensto negotiation ethics as they are actually practiced, not only how they arethought about by moral philosophers who negotiate mostly with their acade-mic peers. We have learned (and selected from) the writings, teachings, andpractices of moral philosophers, legal ethicists, corporate and business nego-tiators, public interest lawyers, and others who serve as agents for the subordi-nated and from the founding generation of modern negotiation theorists.

We begin with two pieces of our own to set the stage for what has concernedus about assessing whats fair and just in negotiation: the big questions aboutwhat duties are owed to others; their sources in personal, religious, familial,role, and professional morality and ethics; and the practice of ethics in actualnegotiations. We hope that the chapters in this book orient readers and negoti-ation practitioners to what we call a moral realists negotiation compass: know-ing what questions to ask of self and others, searching out directions (yes, evenyou men out there) from those who have gone before, and then applying somebasic principlesof the relation of means to ends and relations to relationships,distributive fairness, and just resource allocationto real negotiation situations.We follow with an overview of orienting ethical frameworks developed by sev-eral of the major leaders in modern negotiation theory. We then treat five of themajor issues, as we see them, in negotiation ethics, as others have written aboutthem: issues about truth telling, candor, and deception in negotiation; tacticsand strategic behavioral choices; relationships with others (opponents, adver-saries, partners, counterparts); relationships of agents and principals (and rolemorality) in negotiation; and the social influences on negotiators (antecedentto) and social impacts (consequences and effects) of negotiation outcomes. Ineach part of this book, we provide an introduction to suggest some questionsand orient readers to what is a diverse, provocative, and sometimes conflictingcollection of readings on particular ethical dilemmas. We have sought to demon-strate that while we are searching for some universal principles in negotiationethics, situations, contexts, and variations in negotiation structures (dyadic ormultiparty, direct or representational) and cultures make universal generaliza-tions difficult. Yet just because universal abstractions are often falsified in therealities of practice does not mean that we should either avoid ethical deliber-ation or leave it all to situational or relativist ethics. Many of the authors repre-sented here (including ourselves) suggest that it is time for negotiation theoryand practice to be more explicit about the ethical and moral assumptions orfoundations on which both descriptive and prescriptive advice is presented.Whats fair in negotiation depends in large measure on what we are trying to

VIII PREFACE

969168 FM.qxd 1/23/04 3:56 PM Page viii

accomplish with other people: using them, aiding them, or collaborating withthem to improve the situations we are all in from before the negotiation began.

Several rules of thumb guided us in selecting the chapters. First, our focuswas on the negotiation process generally. For the most part, that meant that wehave not included material that deals with substantive ethical issues that arisein specific negotiation contexts, such as in the representation of childrens inter-ests in divorce cases. Likewise, we left for another day a considerable amountof material on the ethical responsibilities of mediators, arbitrators, and otherthird parties. Finally, we did our best to include perspectives from a range ofdisciplines and practices.

We encountered some challenges in putting this collection together. Therewas a good newsbad news aspect to the fact that there has been a lot ofthoughtful writing about negotiation ethics. Although the book expandedbeyond our original expectations, we could not include everything that wewould have liked, and many of the selections that are included had to betrimmed in the name of overall economy. Interested readers will certainly findadditional useful concepts and illustrations in the original material that we havehad to condense. The Bibliography suggests additional resources. Finally, otherthan our own essays and Larry Susskinds contribution (Chapter Thirty-One),all of the material in the book was written at different times for different pur-poses. We hope that the categories and sequence that we have created providea useful structure for exploring negotiation ethics, but most of the chapters aretoo interesting and too complex to roost obediently in our pigeonholes. Read-ers are encouraged to let their own curiosity lead them wherever it may.

PREFACE IX

969168 FM.qxd 1/23/04 3:56 PM Page ix

969168 FM.qxd 1/23/04 3:56 PM Page x

xi

ACKNOWLEDGMENTS

We owe a large debt (some of which we have paid off in copyright per-mission payments; the rest will come as intellectual tribute) to all of theindividual scholars and practitioners (and their publishers) who haveagreed to share their thinking and words in this book.

If it is possible, we owe an even greater debt to those with whom we havecreated a working relationship in completing this project: Bill Breslin, Mary AliceWood, and Rachel Campanga, who helped us compile and assemble the grow-ing corpus of materials on this important topic; the research assistance of JamesBond and Jaimie Kent; and the advice and commentary of many of our col-leagues at the Program on Negotiation at Harvard Law School, the Harvard Busi-ness School Ethics and Law working group, and many of our students in lawand business school courses and professional training programs who havehelped us see, clarify, and examine the issues presented here.

We are grateful that Alan Rinzler, our editor at Jossey-Bass, was enthusias-tic about our project and patient in seeing it through. We are delighted as wellthat this book continues the fruitful collaboration between Jossey-Bass and theProgram on Negotiation.

The biggest debt by far is owed to Dana Nelson, research associate at theHarvard Business School, whose labors, both creative and organizational, arethe glue that tie the pages of this book together. We thank her for all she didand hope that she found some value in the relationship she had with us.

S S

969168 FM.qxd 1/23/04 3:56 PM Page xi

Finally, of course, we both thank our families who allowed incursions intoquality, as well as quantity, time in our relationships in order to allow usto complete this project. We remind them that it could have been worse: this is,after all, an edited, not authored, book. And what is somewhat of a departurefor formal acknowledgments, we would like to publicly thank and acknowledgeeach other: the negotiations that resulted in this book have been a model ofwhat good working relationships can be. We hope you think so too.

July 2003Washington, D.C.Carrie Menkel-Meadow

July 2003Boston, MassachusettsMichael Wheeler

XII ACKNOWLEDGMENTS

969168 FM.qxd 1/23/04 3:56 PM Page xii

xiii

IntroductionWhats Fair in Negotiation?

What Is Ethics in Negotiation?

Carrie Menkel-Meadow

What do we owe other human beings when we negotiate for some-thing that we or our clients want? How should we behave toward ouradversariesopponents, partners, clients, friends, family members,strangers, third parties, and future generationswhen we know what we doaffects them, beneficially, adversely, or unpredictably? How do we think aboutthe other people we interact with in negotiations? Are they just means to ourends or people like us, deserving of respect or aid (depending on whether theyare our equals or more or less enabled than ourselves)? How do we conceiveof our goals when we approach others to help us accomplish together what wecannot do alone?

Perhaps after the question, What should I do? in negotiation (seekingstrategic or behavioral advice), the next most frequently asked question is,What may I do? (seeking advice, permission, or approval for particular goals,strategies, and tactics that comprise both the conceptualizations and behaviorsof the human strategic interaction that we call negotiation).

This book presents some answers to these questions, culled from a volumi-nous and growing literature on what we think is good, ethical, or moralbehavior in negotiation, all of these things not being equal. Ranging from strate-gic advice that urges negotiators to take advantage of the other side in order tomaximize individual gain, to longer philosophical disquisitions on the deonto-logical (Kantian) versus consequentialist and utilitarian justifications for moralaction, taking account of how negotiation actions affect not only the negotia-tors but those affected by a negotiation, including the rest of society, writers

S S

969168 FM.qxd 1/23/04 3:56 PM Page xiii