The Negotiator Magazine

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How can you negotiate over something that is illegal? In his book, BARGAINING FOR ADVANTAGE, G. Richard Shell, the Director of the Wharton Executive Negotiation Workshop, says that "The Minimum Standard [is] Obey the Law".

Regardless of how you feel about ethics, everyone has a duty to obey the laws that regulate the negotiation process.8

What Richard Shell is referring to here basically has to do with an issue that law school professors call "fraud in the inducement", which includes certain types or degrees of lying and withholding information. This is an area we will discuss in another installment dealing with whether you really need to mistrust extortionists anymore than you do other negotiators. However, Prof. Shell's statement does highlight the issue of how you negotiate something, in this case a bribe, which is illegal from the start. Here you do not have the kidnap negotiator's rationale that you may ethically submit to an illegal extortion demand in order to save a life; or the international negotiatorís interest in dealing with a rogue head of state, in order to protect sovereign interests and accept the lesser public evil.

I have never been a hostage negotiator, but I joined the International Association of Hostage Negotiators, just to keep reminding myself that hostage negotiators have it right when they say that you have to be very sincere and very clear in letting the hostage-taker know up front what is negotiable and what is not. In the public extortion situation, you also have to be very sincere and clear from the beginning that the bribe itself will not be a part of the negotiation; or in economic terms, that the bribe amount will be $zero.

In conclusion As in all negotiation settings, negotiating with an extortionist government functionary requires preparation, a willingness to listen to the "other", and an understanding of the "real" needs of both parties. The apparent legal, logical, and moral barriers to negotiating with EGF's can be overcome, as long as you remember your BATNA of $zero in bribes. In the end, you still have to know when to walk away.

Next installment. In the next installment, we will discuss the first two of several "preparation" issues: Dealing with your own personal needs and desires; and dealing with pressure from your support team (family, friends, colleagues and supervisors) in public bribery and extortion situations.

I look forward to discussing these issues with anyone who is interested.

8Shell, G. Richard, BARGAINING FOR ADVANTAGE, Penguin Books, 1999, p. 206.

About the Author:

Bruce Horowitz, bhorowitz@pazhorowitz.com is a founder and Managing Partner of the Quito, Ecuador law firm of PAZ HOROWITZ, Abogados www.pazhorowitz.com. He has been studying Negotiations and Public Corruption issues since 1985, and has advised international corporate and individual clients on how to comply with Foreign Corrupt Practices legislation since 1989. Bruce has written, taught at the university level and provided presentations and workshops for lawyers, paralegals, law students and others on how to use Negotiation principles and techniques when facing extortionist government functionaries. PAZ HOROWITZ, Abogados is the Trace International representative in Ecuador www.traceinternational.org. Bruce was born and raised in Galion, Ohio, USA. He graduated from Brandeis University (BA 1970) and New York University Law School (JD 1976). Admitted in Alaska 1976, ret. 1990, and Ohio 1985. He is a former Co-chairperson and present Senior Advisor to the ABA International Section's Committee on U.S. Lawyers Working Abroad, and an active member of the ABAís anti-corruption committee.

Bruce can be reached at: Bruce Horowitz, PAZ HOROWITZ Abogados, Whymper 1105 y Almagro, Quito, Ecuador. Tel. 593-2-222-2057, Fax 593-2-250-1902. Email: bhorowitz@pazhorowitz.com Web: www.pazhorowitz.com



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October 2007