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Letters to the Editor...

A reader writes about Charles B. Craver's article entitled "Negotiation Ethics". The article appeared in the December 2005 edition of The Negotiator Magazine

Perhaps I did not understand the thesis of Charles Craver's argument- a lie is ok as long it follows the golden rule? Not clear, though, about: is this behavior efficient or is this behavior over time likely to create the best deal for those involved? Again not sure I understand his point.

Even though the opening paragraph frustrates me and only continues to show the plague of a used car salesman approach to negotiations still sells (i.e. people will read further to find the magical secret sauce/tactic). Beyond the fact that his statements don't appear to be backed with empirical evidence, but rather opinions positioned as fact, I write to point out the hazard of blending or referring interchangeably between attorneys and business people. Are their roles the same- in society- in a corporation? Do they do the same job so often that they can be interchanged so easily? Can you be both at one time- or in reality do you toggle back and forth from one approach and set of philosophies to the other. Are most attorneys just business people with extra knowledge about the law? Has each group received distinctly different professional training and are bounded by different codes and ethics? I wont try to speculate the cultural, logical or productive reasons for this difference, but as described well, by Robert Mnookin in Beyond Winning, attorneys have traditionally been taught to think, solve problems and negotiate in ways that lead most often towards "strategic hard bargaining" rather than maximum joint gains or true value creation based on interests. I would argue business people are not evolving professionally from that same frame. Not that people don't develop and grow, but the foundation and many core elements make me question the assumption these attorneys and business groups are similar ENOUGH to write a informative article with prescriptions to both without calling out the differences between them.

Perhaps narrowing the focus to "Negotiation Ethics for Attorney's" would all the these to tested and applied?

Thanks for providing the venue for debate and learning,
Ben, USA

Charles B. Craver's response

Thank you for inviting me to respond to the writers concerns. My comments follow:

The fact that some degree of "puffing" or "embellishment" is expected in both legal and business negotiations is well recognized. Comment 2 to Model Rule 4.1 proscribing knowing misrepresentations of material fact by attorneys excludes statements about one's settlement intentions and subjective values placed on the the items being exchanged. Leading books used in business negotiation classes also acknowledge this fact. See, e.g., Lewicki, Litterer, Saunders & Minton, Negotiation: Reading, Exercises and Cases 505-512 (2nd ed. 1993); Shell, Bargaining for Advantage 203-215 (1999); Raiffa, The Art and Science of Negotiation 142-144 (1982) (referring to such statements as "strategic misrepresentations"). These authors and others recognize that individuals who use some acceptable "puffing" and "embellishment" can gain an advantage over more forthright opponents. I have personally observed this fact many times over the thirty years I have conducted exercises in my Legal Negotiating classes. On the other hand, this creates an inherent tension between value creation and value claiming during all negotiations. If efficient collaborative agreements are to be achieved, both sides must disclose their underlying value systems with some degree of candor -- in a perfect negotiating world with complete honesty. Nonetheless, most professional negotiators do not expect such openness. They expect some "puffing" and "embellishment" and use strategic questions and active listening skills to read between the lines and ascertain which items are really important to their opponents. They also disclose sufficient information to allow the other side to appreciate which items they truly value. This allows the participants to make trades that will expand the overall pie and maximize the results achieved by both parties. If nave negotiators are completely open with opponents who are not being so candid, however, they open themselves to exploitation that will enable the more manipulative persons to obtain a bargaining advantage. Even if the negotiators ultimately maximize their joint returns, the disingenuous participants will obtain more beneficial terms than their completely open opponents.

In a perfect world, negotiators would never use misrepresentations of any sort. In the real world of both law and business, however, some degree of "puffing" and "embellishment" is expected by all professional negotiators I know. Nonetheless, individuals must be careful never to go beyond the degree of "puffing" expected by most negotiators. If they do so, they will be considered "dishonest" and will find it increasingly difficult to interact efficiently and pleasantly with others. This is an especially important consideration when one's clients have on-going relationships and/or where the negotiators themselves are likely to have future dealings. Charlie

Charles B. Craver
Freda H. Alverson Professor
George Washington University Law School
720 20th Street, NW
Washington, DC 20052
ccraver@law.gwu.edu

To send a letter to the editor, please write by e-mail to John Baker at editor@negotiatormagazine.com.
Your suggestions are always welcome.


February 2006