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Negotiation Candor

by Phyllis Pollack
May 2011

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

Imagine the following hypothetical: while John Smith and Jane Doe were dating, they had intimate relations. They have since broken up. John discovers that he may have contacted the deadly DONS (Deficiency of the Nervous System) virus from Jane. (This is a hypothetical incurable disease that eventually leads to death within 5 years.) Evidently, Jane just notified him that she tested positive while they were dating and suggested he get tested. John follows her suggestion and takes a home test: he tests positive. Being quite upset, he threatens to sue her. She responds by suggesting mediation to work-out a financial settlement as she is not disputing liability.

Prior to the mediation, John is tested by a doctor and finds that he is actually negative for DONS. That is, the home test was a false positive.

John attends the mediation with his attorney. Just prior to the mediation starting, John tells his attorney that he was re-tested by a doctor and the results were negative. However, he asks his attorney to refrain from revealing this new information because he is still very angry with Jane and wants to punish her for being so sexually reckless.

What should the attorney do: obey his client’s wishes and not reveal? Or, be candid with Jane?

These were some of the questions posed in a study by Art Hinshaw and Jess K. Alberts published in a paper entitled Doing the Right Thing: An Empirical Study of Attorney Negotiation Ethics (and soon to be published in the Pepperdine Dispute Resolution Journal). (Doing The Right Thing) (The above hypothetical appears on pp. 25-26 of the paper.) Professor Hinshaw discussed the results at a session of the recently held ABA Dispute Resolution Section Spring Conference.

For their study, Professors Hinshaw and Alberts used two sets of practicing attorneys: 528 from metropolitan Phoenix, Arizona and 206 from metropolitan St. Louis, Missouri. The 528 Arizona attorneys consisted of 354 men and 163 women (with 11 declining to identify their sex), whose average length in practice was 19 years. The 206 Missouri attorneys consisted of 169 men and 37 women whose average length in practice was 24.75 years. ( Id. at pp. 24-25.)

The results were eye-opening. Only 62% (452 respondents) said that they would not agree to John’s request to conceal this critical information. However, 19% (142 respondents) said that they would agree while the remaining 19% (140 respondents) said they were not sure how they would respond. (Id. at p. 29).

The Professors then asked those attorneys who either refused outright to follow John’s request or were unsure how they would respond a follow-up question: Suppose the facts were slightly changed such that John permitted his attorney to disclose his true negative test result only if directly asked about it? That is, if directly asked: “does your client have DONS” etc.? Only then, could the attorney disclose John’s negative test results. (Id. at p. 29).

In this scenario, of the total 592 respondents, who had either declined John’s initial request or were unsure, 64% (376 respondents) indicated they would refuse John’s request while 13% (79 respondents) stated they would agree to it and 23% (137 respondents) stated they were not sure what they would do. (Id. at p. 30).

In sum, it seems that under one or the other of the scenarios, only 50% (366 respondents) of attorneys selected the proper or ethical course of conduct: they would refuse to assist John in a fraudulent scheme. Sadly, 20% (147 respondents) were not sure what they would do. (Recall that these are all attorneys with an approximate average of 20 years of experience!) (Id.at pp. 30-31).

The study also looked at the degree to which attorneys learn by watching and following (mimicry) what their colleagues do. When asked how they thought their colleagues would respond, those who stated that they would agree to keep mum, believed that 41 to 60% of other attorneys would also agree to keep mum and withhold this important information. (Id. at p. 59).

With respect to gender, the researchers found that more men (54%) than women (40%) would outright refuse John’s request to keep silent. Based on the results, the researchers believe that women “. . .may feel more equivocal or less certain of their positions when applying ethical principles in context. . . .” (Id. at p. 63).

Finally, the researchers found “. . .no clear pattern of relationships exists between years since licensure and respondents’ propensity to . . .” to remain silent on a critical point. (Id. at p. 64).

There is a fine line between what is honest and what is not in negotiating and how candid must one be. Sadly, if we believe the results of this study, many attorneys appear not to know where to draw this line!

. . .Just something to think about!

Biography


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.



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