PGP Mediation Blog by Phyllis G. Pollack
I came across an article on negotiation ethics that intrigued me because I am co-teaching ADR Ethics at USC Gould School of Law this semester. Typically, before I discuss the topic of mediation ethics with my students, I delve into the topic of “negotiation ethics” in general.
The article, entitled “Negotiation Research Examines Ethics in Negotiating Scenarios”, appears as a blog post written by the staff in the Program on Negotiation at Harvard Law School (October 4, 2018).
The theme of the article is that whether negotiators engage in ethically questionable behavior depends on many factors such as power and opportunity. “Ethically questionable behavior” includes not telling the complete truth about something or misrepresenting some information from the other party that would lessen our advantage in the negotiations.
The blog post notes that in every negotiation, “we make a series of ‘micro-ethical decisions’”. Such decisions often involve “…choosing whether to disclose, conceal, or misrepresent information that would potentially lessen our own outcomes and benefit our counterparts.” (Id.) For example, we may assert that we have better and more options to settling than in fact we do, or that the amount being offered is far too little when in truth, it is more than we are expecting.
As the authors explain:
The structure and social nature of such decisions can lead to ethical fading, a term coined by researchers Ann Tenbrunsel and David Messick to describe the tendency for the ethical dimensions of decisions to fade from view under certain conditions. Ethical fading allows us to diverge from our high moral standards and behave unethically without recognizing that we are doing so. (Id.)
To show this, the researchers conducted a lab experiment in which the negotiators were primed to feel powerless. The researchers found that these negotiators “…were less deceptive than those who believed they were powerful…” (Id.)
Another study involving ethics revealed that perspective taking impacts our ethics. “Perspective taking” is “…attempting to see a situation through another person’s eyes.” (Id.) Typically, this will lead to a person having “… increased empathy and altruism, less reliance on stereotypes, and more objective judgments of what constitutes a fair negotiated agreement.” (Id.)
But, researchers found that “…perspective taking can increase negotiators’ propensity to behave deceptively” where the parties are acting competitively rather than collaboratively. In the experiment, adults were told that they were playing an online game which involved deciding how many points belonging to them they should contribute to a shared pool. In some of the games, the adults were told that their counterpart was acting competitively, while in others, they were told that the counterpart was acting cooperatively. As noted, in the former situation, the adult participant tended to behave more deceptively than in the latter situation.
So- the take away from these experiments is to be careful of the “ethical fading” or as some others have labeled it as the “ethical slippery slope”, and if you do take the other person’s perspective, do so in a cooperative, collaborative manner.
… Just something to think about.
Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides. When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.