The Negotiator Magazine

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David Lax and James Sebenius, in an essay on "Ethical Issues in Negotiation"4 , point out that, "The essence of much bargaining involves changing another's perceptions of where in fact one would settle. Several kinds of tactics can lead to impressions that are at variance with the truth about one's actual position." They offer two tests and a golden rule, in a fuller and more subtle paper than these short quotes suggest.

The first of these rules goes to explain the difficulties that arise between a strongly competitive and a strongly co-operative negotiator whose attitude to the strict truth may be very different. The second test is met in most dispute based negotiation but could create difficulties where the parties are negotiating under pressure from the court.

Lax and Sebenius offer the golden rule - "How would you feel if someone did it to you?" That rule is as good a guide as any.

4 In Menkel-Meadow, C. and Wheeler, M., What's Fair: Ethics for Negotiators (Jossey-Bass, 2004).


David Higham is Visiting Professor of Litigation Management at Nottingham Law School. After a first career as a submariner in the Royal Navy, he became a solicitor in 1979. A civil litigator, he was Head of Litigation of Blake Lapthorn from 1991-2000 and then Head of Professional Development & Research. David was awarded a Master's Degree in Advanced Litigation in 1996. He is a solicitor advocate and a Fellow of the Chartered Management Institute.

David Higham now teaches on a number of Nottingham Law School courses including the LLM in Advanced Litigation and the MBA in Legal Practice. You may contact David Higham by e-mail at david@drghigham.freeserve.co.uk

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April 2005