Maureen Gauci

Ethics in Negotiation

Law 341 and Law 342

October 28th, 2013

Maureen Gauci

Does a good end justify any means?

• How does the question of ethics apply in negotiation?

• What kinds of ethical conduct arises in negotiation?

• What motivates “unethical” behaviour and what are the consequences?

• How do you deal with another party's deception?

Maureen Gauci

Standards for evaluating strategies:

1) Greatest return on investment (end-result ethics) = Rightness of an action is determined by considering the consequences

2) Law, professional standards (duty ethics)= obligations to apply universal standards and principles.

3) Cultural values or norms (social contract ethics)=determined by community cultural norms

4) Personal convictions (personalistic ethics)=determined by one’s own conscience, the `right thing to do’.

Maureen Gauci

Ethically Ambiguous Negotiating

• Competitive Bargaining- making inflated opening offers, ‘take it or leave it’

• Bluffing eg insincere promises or threats, exaggeration, concealment.

• Manipulation of information or value by commission (lying) or by omission

• Emotional manipulation eg faking anger, fear, disappointment, elation, satisfaction

• Misrepresentation of facts• Misrepresentation of opponent’s reputation with peers• Inappropriate information gathering eg bribery

Maureen Gauci

Why? Motives:

• Power

• Personal motivation e.g competitive, cultural

• Anticipation or perception of the other party’s competitive or unethical behaviour

Maureen Gauci

Dealing with Deception

• Ask probing questions

• Ask a direct question which forces the other party to lie or back off

• Call the tactic

• Discuss what you are observing and talk about consequences

• Respond in kind

• Ignore the tactic

Maureen Gauci

Professional Standards:LSUC Rules of Professional ConductRule 2 – Relationship to Clients

2.02 Quality of Service

Encouraging Compromise or Settlement

(2) A lawyer shall advise and encourage the client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis and shall discourage the client from commencing useless legal proceedings.

(3) The lawyer shall consider the use of alternative dispute resolution (ADR) for every dispute, and, if appropriate, the lawyer shall inform the client of ADR options and, if so instructed, take steps to pursue those options.

Maureen Gauci

Rule 2.02 Quality of Service con’t

• (5) When advising a client, a lawyer shall not knowingly assist in or encourage any dishonesty, fraud, crime, or illegal conduct, or instruct the client on how to violate the law and avoid punishment.

Maureen Gauci

Mediator Ethics

• More likely to have issues with a directive style or settlement bargaining

• Issues typically arise around confidentiality, settlement negotiations

• No regulatory body for mediators, however, some oversight provided by associations such as CBAO, CAFM and AMIC

• Mandatory Civil Mediation has adopted CBAO`s Code of Conduct

Maureen Gauci

CBAO Code of Conduct

1. Mediators shall make reasonable efforts to ensure the parties understand the mediation process before mediation commences.

2. Mediators have a duty to ensure that they conduct a process which provides parties with the opportunity to participate in the mediation and which encourages respect among the parties.

3. Mediators shall inform parties to a dispute that mediation is most effective when the parties with full authority to settle are in attendance and when they are willing to consider options for settlement.

4. Mediators who are lawyers shall not represent any party(ies) to the mediation.

5. Mediators have an obligation to acquire and maintain professional skills and abilities required to uphold the quality of the mediation process.

Maureen Gauci

LSUC Rule 4.07 LAWYERS AS MEDIATORS

Role of Mediator • 4.07 A lawyer who acts as a mediator shall, at

the outset of the mediation, ensure that the parties to it understand fully that (a) the lawyer is not acting as a lawyer for either party but, as mediator, is acting to assist the parties to resolve the matters in issue, and (b) although communications pertaining to and arising out of the mediation process may be covered by some other common law privilege, they will not be covered by the solicitor-client privilege.