Gini Nelson's Engaging Conflicts

Ethics and Morality in Negotiation
Kevin Gibson

Your dilemmas as a negotiator fall into two basic sets, “what’s possible?” and “what’s right?” The first is treated by many chapters in this book. Here, from his philosopher’s background, Gibson writes about the influence of morality on negotiations, and how we can think more clearly about what’s the right thing to do. This chapter should be read in conjunction with Menkel-Meadow and with Ryan on Rawls; for the rebound effects, you might turn next to Tinsley et al., Reputations.

Carrie begins her article by noting some criticisms of negotiation as a process, such as that based on an assumption that any compromise of principles must be morally defective. She asserts that negotiation is often a morally preferable way of solving human and legal problems. As she says:

In my view, the choice to negotiate is ethical and moral (that is true, right and good) when it treats the Other (or counterpart) as an End, not as a Means, in the Kantian sense. To negotiate is to acknowledge that one cannot accomplish one’s own ends alone-one needs others (even if one needs others to apologize, correct, or compensate for a wrong committed).

In addition, she reminds us that sometimes there is not a clear right or wrong (and it’s not a “principled” matter)– it is just something that has to be worked out, such that:

… where there is not a clear principle for allocation, or knowledge of crucial information for proper allocation, it may be most just to split the proceeds between those in dispute. This principled argument for compromise is deeply ethical on at least two levels: (1) it says that where there is no just reason for allocation, the parties should share equally in the uncertainty and (2) it is better to resolve a dispute or allocation problem peacefully by some methods than not to resolve it at all.

Concerning means used within the process, she emphasizes that one’s orientation in negotiation (how you conceptualize the problem) is an ethical choice, and “bad” ethical choices can lead to “bad” outcomes, “ineffective, unenforceable or regretted outcomes– not to mention the “economic waste” often not seen if joint pain or resource enhancement is possible.”

She concludes thusly:

How we choose to negotiate (whether to negotiate at all, how we make our choices about what we are trying to accomplish, and what behaviors we choose to accomplish its objectives) is an ethical matter. By choosing different negotiation models or behaviors we’re choosing the “ideas” by which we live, and as I have suggested here, some ideas are morally superior to others.

Kevin emphasizes that “even those who treat negotiation as an amoral game not subject to ordinary moral constraints have chosen to act that way, which is in itself an ethical choice.” People will come to the table (or not) with different assumptions, both about what is ethical, and about “the other”, including different assumptions about what the other will consider ethical. Empirical testing has established different assumptions and behaviors among those with cooperative, neutral, and competitive approaches to negotiation:

[C]ooperative people believe there are cooperative, neutral and competitive people in the world; people with a more neutral disposition felt there were neutral and competitive sorts; and competitive individuals felt that everyone was exclusively competitive too. Our approach to negotiation involved an assessment of the party across the bargaining table, and unrealistically imputing values to others meant that the style of bargaining was unnecessarily limited and opportunities for settlement were lost. Competitive behavior in these tests was associated with selective misrepresentation and willingness to renege. … In contrast to the cooperative negotiator, the aggressor will push the other side as far as it will go, in the belief that the opponent will stop them if they go over the boundary of moral acceptability. In that sense, they do not self-monitor their behavior, but rather rely on their opponents to restrain them, a stance that may leave other parties feeling “steamrollered”.

Kevin urges us to do negotiation exercises to get better knowledge of ourselves, and also to get more and better tools, i.e., “a greater repertoire of potential actions and responses”.

Kevin also discusses present directions in ethics including: (1) more frequent use of stakeholder analysis; (2) considering the context of Lawrence Kohlberg’s developmental moral levels; (3) considerations based on Carol Gilligan’s work on gender differences in confronting moral dilemmas [note Carrie hasn't been persuaded yet]; and (4) the framing effects of language [see e.g.,the Wikipedia entry for George Lakoff's Rockridge Institute]. Concerning the framing effect, Kevin notes that “when inexperienced or untrained individuals negotiate, settlements emerge out of the initial narrative almost 80% of the time, which means there is immense power to being the first to make a case.”

More in upcoming issues of Engaging Conflicts Today… sign up today!

Carrie Menkel-Meadow is A.B. Chettle, Jr. Professor of Law, Dispute Resolution and Civil Procedure at Georgetown University law Center and Director of the Georgetown-Hewlett Program in Conflict Resolution and Legal Problem Solving. She is author, co-author or editor of six books on negotiation and conflict resolution and over 100 articles on conflict resolution, civil procedure, negotiation, mediation, legal ethics, jurisprudence, feminist legal theory and legal education. She was among the first to teach negotiation in an American law school (in the 1970′s), has taught at many law schools including Harvard and Stanford, and has trained lawyers, mediators, diplomats and government officials on five continents. She also has extensive practical experience as a mediator and arbitrator in many types of disputes.

Kevin Gibson is Associate Professor of Philosophy and Management at Marquette University. He is the director of the Marquette Center for Ethics Studies. He studied with the Harvard Negotiation Project and CDR Associates of Boulder. Dr. Gibson has mediated commercial, environmental, divorce and child custody disputes as well as facilitating a number of settlement conferences. He has worked as a mediator and coach for CDR Associates and the University of Denver Law School. He has published a number of articles on dispute resolution in journals such as the Negotiation Journal, Mediation Quarterly and the Hastings Center Report. At present, he is a teaching associate with the Marquette Center for Dispute Resolution Education.