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Information Please

by Phyllis Pollack
November 2013

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack
Let us suppose that you are an attorney representing a client at a mediation. The following occurs:

Your clients, the defendants, have told you that you are authorizedto pay $750,000 to settle the case. In settlement negotiations, after your offer of $650,000, the plaintiff's attorney asks "Are you authorized to settle for $750,000?" Can you say, "No, I am not."? (See below for citation.)

How do you respond?

In May 2011, I posted a blog about a study by Art Hinshaw and Jess K. Alberts about ethics in negotiations using practicing attorneys from metropolitan Phoenix and metropolitan St. Louis, Missouri who were asked how they would react in hypothetical situations during mediation. The results indicated that only about 62% of the attorneys would act ethically in a hypothetical negotiation while 19% indicated they would not act ethically, and the remaining 19% were not sure how they would react in the hypothetical situation.

Professor Hinshaw, together with Peter Reilly and Andrea Kupfer Schneider have now published an article entitled, "Attorneys and Negotiation Ethics: A Material Misunderstanding," 29 Negotiation Journal 265 (2013) ( SSRN-id2337060.pdf ) in which they discuss several studies on this issue.

In response to the above hypothetical (Id. at p. 269), they found that a majority (61.86%) of the attorneys did answer correctly, by stating, "No'. However, a sizeable minority (38.14%) answered, "Yes". (Id. at pp. 269, 270).

In this newer study by Professor Schneider, she asked three additional questions testing the participants' ethics in a negotiation. (See, pages 269-274.) Again, in each instance, while a sizeable majority (60% and 77%) answered the questions correctly, disconcertingly, a sizeable minority (40% and 22%) did not.

From the various studies conducted by these authors, they conclude that "... (e)thical behavior appears to be a strong norm...." (Id. at p. 277.) But, at the same time, they point out that their surveys did not replicate real life situations in which an attorney is having to make ethical choices in the face of business considerations such as collecting her fee, keeping her client happy and advancing her career. The authors opine that "in actual practice adherence to ethical rules tend to decrease." (Id. at p. 277.) Why? Because, assuming that the lawyers simply make a mistake in applying the ethical rules rather than intentionally violating them, the authors suggest that the lawyers either over think the rules and/or have only a superficial understanding of them. (Id. at p. 278.) As most lawyers will acknowledge, a tension exists between loyalty to the client and insuring "justice" to the point that, at times, zealous advocacy reigns supreme. (Id.)

To insure that negotiations do remain ethical, the authors suggest several negotiation strategies which, in essence, rely on the notion that information is crucial in any negotiation.

The first strategy is to create rapport or a positive relationship with opposing counsel. Get to know the other party. This will, inherently, help build trust and prevent lying. (Id. at p. 280.) It will provide you with a "baseline" of how the other attorney behaves, so that if she does attempt to lie or her behavior changes, you will readily detect it. (Id. at p. 281.)

The second strategy is to always check your own actions by asking yourself whether you would be comfortable if your behavior was "...being reported on the front page of the New York Times... (or...) posted on Facebook or being described to...[your] grandmother.(citation omitted.)" (Id.)

Another strategy is to "dig relentlessly for information." Ask the other party to "share lots of information..." by actively listening, asking softball, non- threatening, non-confrontational open ended questions "... that can yield truthful and valuable information." (Id. at p. 280-1).

Further, use objective standards. For example, if someone says the damages are $1000, ask what is the basis for that number; what are its constituent parts? "People will be less like to deceive if they know from the start of the negotiation that you will be asking for objective criteria and standards." ( Id.)

The authors also suggest that prior to the negotiation, prepare a list of the (obvious and/or "hard") questions that you want answered, in their order of importance and when the other party attempts to evade, keep asking them until answered. "Asking numerous questions on the same topic is one way to thwart dishonesty...." (Id.)

Finally, the authors suggest that you use "Come Clean" questions at the critical moments; e.g., "Is there anything unknown to me or to my client that could have a material impact on this case?" The authors suggest following this up with something like, "Getting things out on the table early tends to prevent headaches down the road." (Id. at p. 281.) Keep asking questions like this until the response is satisfactory.

In sum, as "information is the lifeblood of any negotiation", the goal is to get as much information from the other party as possible, either by directly asking for it, or actively listening for it. (Id.). The more information that is shared, the less likely will deception and lies abound.

.... 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.

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