Ethical Challenges in Mediation

Have you ever lied in a negotiation?  The most common answer is that it depends on what is meant by lying.  Is representing a higher level of confidence in your BATNA than you actually believe a lie?  Is stating that this offer is the best and final when you know it’s not a lie?  What if there is a general perception that no one ever means best and final the first time they say it — is saying it still a lie?  In a negotiation is it ever unethical to lie?  My goal here is not to answer these questions but to explore how our normal ethical standards may be stretched in a negotiation.

In an article earlier this year, the Harvard Program on Negotiation (“PON”) published this article on the importance of building trust in a negotiation.  There are negotiations where the development of trust is more important than in a civil case mediation but there are obvious advantages even in our negotiations.  Certainly anyone negotiating with the same lawyer in multiple cases will remember past examples of unethical behavior. 

Ethics in negotiation is more than just the choice between telling the truth and puffing.  In this fantastic paper on negotiation, Dean Hal Abramson describes how to view all conduct as either a good practice, a tactic, or a trick.  The paper is worth reading for a lot of reasons but I cite it here for examples of what some might consider unethical behavior, including the failure to bring a decision-maker to the negotiation and lying about material facts.  Another trick that could be considered unethical is a demand for early mediation and subsequently pleading lack of discovery for the inability to make compromise offers.

Whether particular conduct is unethical is not only contextual but very much subjective.  In this very recent article, the PON set out five questions you should ask yourself to determine the boundaries between right and wrong and your own ethical standards:

  • Would I want others to treat me or someone close to me this way?
  • Would I be comfortable if my actions were fully and fairly described in the newspaper?
  • Would I be comfortable telling my best friend, spouse, or children what I am doing?
  • Would I advise anyone else in my situation to act this way?
  • Does this action reflect how I want to be known and remembered?

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