Lawyers have broad discretion in deciding how honestly to behave when negotiating. We propose that lawyers’ choices about whether to disclose information to correct misimpressions by opposing counsel are guided by their moral character and their cognitive framing of negotiation. To investigate this possibility, we surveyed 215 lawyers from across the United States, examining the degree to which honest disclosure is associated with lawyers’ moral character and their tendency to frame negotiation in game‐like terms—a construal of negotiation that we label game framing. We hypothesize that the more that lawyers view negotiation through a game frame—that is, the more they view negotiation as an adversarial context with arbitrary and artificial rules—the less honest they will be in situations in which honest disclosure is not mandated by professional rules of conduct. We further hypothesize that lawyers with higher levels of moral character will apply a game frame to negotiation to a lesser degree than will lawyers with lower levels of moral character, and that honesty when negotiating will be higher when lawyers have higher versus lower levels of moral character. Our study results support these hypotheses. This work suggests that focusing on game‐like aspects of negotiation can induce a less moral and ethical mindset. To the extent that teaching law students to “think like a lawyer” encourages them to adopt a game frame of negotiation, we can expect such training to reduce the likelihood of honest disclosure.
Last month, I was asked to present a continuing legal education program to between 60 and 100 government attorneys working for the Commonwealth of Pennsylvania who were active as mediators and mediation participants.
Editor's Note: The Master Mediator is taking a break from his fascinating, in‐depth series on neuroscience and the psychological factors and cognitive biases that may affect dispute resolution. As Bob Creo's earliest columns, describing and discussing mediation room techniques and practice issues, appeared a number of years ago, and only on the CPR website, Alternatives is delighted that he has agreed to reprise and update them, beginning in this issue, in a new “Back to Basics” series. This column deals with the concept of compromise; future columns in the series will cover “ghostbusting” in mediation, terms of reference, and constructing settlements.
As a young lawyer, I attended informal lunches with senior practitioners and judges at a restaurant which reserved two round tables daily for the legal profession to congregate on an ad hoc basis.
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