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IMPORTANCE OF NEGOTIATIONS

Lawyers negotiate all day, regardless of whether they are involved in a formal negotiation. In
fact, we all negotiate in both our professional and personal lives: that is the nature of social
interaction. However, legal negotiation is a unique creature. Lawyers act as agents not principals
in negotiations, requiring a specific skill set. Both law firms and in-house counsel can’t afford
not to impress their clients with their negotiating expertise. Understanding the skills required for
a legal negotiation requires an in-depth understanding of our role in the process. What is our role
as lawyers? Clients don’t just want us to ‘translate’ an agreed commercial position into legal
documentation… our legal expertise is a given. In addition, they expect us to understand their
underlying motives, their business environment, the short and long-term consequences of any
one deal, their relationships with the other parties, when to revert to them (and when not to)…
the list goes on and provides the backdrop to how negotiations should be conducted. Legal
negotiations also differ in that they are contentious or non-contentious. In contentious
negotiations, the outcome is not completely within the negotiating parties’ control as the lawyers
must bear in mind the court process and the court’s likely attitude to how negotiations have been
conducted. In transactional matters, there is more potential for the parties to have shared
interests. There is also greater scope in non-contentious discussions to change the negotiating
party. The seller of a business could, in theory, find another purchaser. Due to the multiple
business stakeholders involved in a transaction, it is also often a challenge to discover who is
really driving the transaction terms. Does the board of directors have a different perception to the
one director you receive instructions from on a daily basis? Is the procurement department
adversely affecting this negotiation in the interests of consistency? A lawyer’s role involves
mediating between these stakeholders and assessing the nuanced motives of the other side’s
stakeholders. Clients expect lawyers to be holistic and cognisant of the need to bring other
stakeholders along in the process. This one day course, run by an ex-corporate finance solicitor,
directly addresses the issues at the core of legal negotiation by asking delegates to consider 3
central questions:

Who are the people involved?

What are the problems (and how do we solve them)?


How do I effectively prepare?

Part 1 (Understanding People/ Human Dynamics) This focuses on understanding your own
effectiveness as a negotiator, assessing your client’s needs and trying to get to the heart of your
opponent’s motivations.

Participants will consider: the myriad of stakeholders’ interests (for example: commercial lead,
procurement, IT, line management, board of directors, other workstreams…) the specific
challenges for internal and external counsel.

how to manage internal conflicts: who is the ‘true’ client?

 do you need to facilitate clearer internal agreement?

 the role of lawyer as project manager the role that Procurement have to play: recognition
that they may have their own agenda (and have their own performance metrics) recognition that
the procurement agenda might not be entirely aligned with your

 other client stakeholders the importance of a communication strategy: how are you going to
communicate the right amount of detail to the right people

 at the right time, through appropriate channels striking a balance between lengthy debate and
alienating stakeholders.

In terms of individual skills, it is well recognised within the learning and development industry
and social science that skills are learnt through practice and self-evaluation.

To that end, participants will: evaluate their own and others’ negotiating experiences analyse
attitudes, styles and personalities within negotiation consider essential verbal and non-verbal
communication skills practice listening and questioning techniques consider the differences
between and challenges inherent in different types of negotiation setting:

Telephone

 email

 face-to-face
 assess how and why tactics and gambits are being employed by opponents consider how to
deal with difficulties, such as:

 difficult people

 emotive subject matter

 deadlock

Part 2 (Solving Problems)

. Recognising that the issues to be decided upon should be separated from the personalities
involved is the first step. Next comes working out possible solutions to the issues at hand and
being prepared to adapt to changes and new information.

Participants will:

discuss positional and principled negotiation theories (Fisher & Ury’s Getting To Yes and
Getting Past No, the Harvard Negotiation Project and Dr C Karass, amongst others)

explore how to find mutually satisfactory solutions, or, if this is not possible, explore

how to create persuasive arguments which will influence stakeholders develop lateral thinking
skills

Part 3 (Preparing to Negotiate). Abraham Lincoln once said “if I had eight hours to chop down a
tree, I’d spend six sharpening my axe”. Part 3 emphasises the importance of effective preparation
for effective negotiation.

In teams, participants will:

consider the importance of factoring in time to develop strategies with the client(s)

recognise that decisions often need to be made in real time in negotiations: what are you
empowered to agree? prepare for a negotiation using a detailed legal scenario and preparation
grid

Identify:
ZoPAs BATNAs walkaways underlying interests develop legal and negotiation
strategies practice negotiation

reflect on the effectiveness of the strategies employed

Negotiation and different types of negotiators

“Disputes are inevitable element of human interaction and society needs to develop efficient and
1
innovative methods of dealing with them." To resolve disputes man has developed court
system. However there is a huge amount of cases pending in the courts. Lack of sufficient
machinery retards the process in resolving these disputes. An alternative to court, what we have
is something called Alternative Dispute Resolution (ADR). It has been described as “A halfway
house between the certainty of the adversarial system and flexibility of
negotiation". 2 Summarizing this we can say that this is an informal process, alternate to
litigation, with the involvement of a neutral third party, given a choice of various processes.
Negotiation, Mediation, Arbitration and Conciliation are the different methods of ADR.

The discussion of this essay is “Competitive negotiators are more effective than cooperative
negotiators and the lies they tell are ethically permissible". The Part I of this essay defines
negotiation and different types of Negotiators. Part II is comparison between competitive and
cooperative negotiation tactics Part III explains why competitive negotiation is often more
effective than cooperative negotiation Part IV discusses about Lying in Negotiation and whether
it is ethically permissible? And part V Conclusion.

Negotiation & different types of Negotiators

“Animals do not negotiate. They use violence or threat of violence, and various forms of
‘dominance’ and ‘display’ to get what they want, be it food, mates or territory. Theirs is a ‘red in
tooth and claw’ instinct and intentions."3 . Human beings negotiate, though not all of them use
this method. Negotiation has been defined by various people. “The process by which by which
we search for terms to obtain what we want from somebody who wants something from us is

1
https://www.lawteacher.net/free-law-essays/common-law
2
https://www.lawteacher.net/css/main.css?exp=1523020515
3
ADR Principle and Practice, Arthur Lmariat and henry J brown
Negotiation." 4 ‘A joint decision made by two or more parties is referred to as Negotiation.
Reaching a consensus is the basic idea behind negotiating. Enabling groups of agents to arrive at
a natural agreement regarding a belief, plan or goal, is the key form of interaction’. 5“Negotiation
is the process of two individuals or groups reaching joint agreement about differing needs or
ideas. Oliver (1996) described negotiation as "negotiators jointly searching a multidimensional
space and then agreeing to a single point in the space." 6‘According to Fisher and Ury, when you
and the other party have interests that are shared and some that are opposed, an agreement is
reached through back and forth communication is what negotiation stands for’. 7

Before a suit is filed in the court, negotiation is done. If successful the suit may be prevented,
therefore it is a preventive ADR. By systematic dispute management, an emphasis is made on
avoiding conflict in the preventive process. In this way damage of relationship, loss of money
can be avoided or saved, as well as builds trust and confidence between the disputing parties.
Rightly enough, “the interaction between client and lawyer is a form of negotiation." 8 In a
negotiation, “why does your opponent want is far more important than ‘what does the opponent
want’. This helps the negotiator to decide the methods of negotiation, which are Integration,
Obliging, Dominating, Avoiding and Compromising. Based on the above methods there are
different type of negotiators Competitive, Cooperative, Interest based and Avoider type
negotiator. Avoider type negotiators prefer to maintain status quo and try and hide behind
various rules, legal procedures and regulations. Their limited social skills are no good. “Some
people may prefer compromising, others are fiercely competitive. And others can be outright
9
adversarial when negotiating". Compared to other negotiation styles, Competitive and
Cooperative negotiations styles are more preferred by the negotiators.

Competitive Negotiators

4
"Negotiation and different types of negotiators"
5

Disputes are inevitable element of human interaction and society needs to develop efficient and innovative methods
of dealing.

6
https://www.lawteacher.net/images/subjects/social/common-law.jpg
7
company-information/fair-use-policy.php
8
Stark, P. (2003). Only Negotiating Guide You’ll Ever Need: 101 Ways to Win Every Time in Any Situation. USA:
Broadway Books.
9
Oliver, D. (2010). Creating Success: How to Negotiate Effectively. 3rd Edition. London, GBR: Kogan Page Ltd.
These types are the aggressive sorts. They are also referred to an assertive, distributive and
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positional. The opponent is no real concern of theirs, their interest mainly being profit
maximizing for their client 11 . The attitude they carry clearly reads ‘my way or the highway’.
Their characteristics are as follows.

These negotiators do not give much importance to the relation with opposite party.

There is suspicion and hostility in attitude towards opposite party.

They use assertive and tough language.

There may be use of tools like coercion, threat or deception.

They will subtract certain items from the deal to get more profit.

They will listen less of opposite party, and they talk more.

There will be use of domination over the weaker party.

The competitive negotiator will close the negotiation by giving a final offer.

They would not prefer to bargain over it.

A competitive negotiator is of the belief that they has lost if the opponent gains what they want.
They display effective communication skills and ability of faster evaluation in the client’s
interest, even in tough conditions. Resisting the competitive negotiators, they feel they are not
trying hard enough for the opposite party to submit before their demands. “The long-term
consequences of competitive negotiation are unfavorable, yielding reduced enthusiasm and
commitment as well as damaged relationships." 12 They believe they know best, they may also
make a display of authority, which they may not actually have. “A quasi-strength of competitive
negotiation is that the tactic often intimidates opponents and creates a situation where
competitive negotiators steamroll more cooperative negotiators into offering concessions and
10
Mills, H. (2005). Streetsmart Negotiator: How to Outwit, Outmaneuver, and Outlast Your Opponents. USA:
AMACOM Books.
11
MxCormack, M. (1995). McCormack on Negotiating. Random House
12
href="/Dissertation Writing Service”
more readily agreeing to the objectives of the competitive negotiator. A major weakness of
competitive negotiation, on the other hand, is that the other side will likely become competitive
as well leading to prolonged labor disputes" 13

Unethical techniques used by competitive negotiators are, a) Lying – fact of matter and proposed
settlement offers are lied about by hiding the traps in it. b) Bluffing – This being different from
lying, facts are exaggerated to give a bigger picture of outcome. The opponent is made to believe
that the settlement will be highly advantageous to them, which in fact is not true. In such a
situation risky decisions and preparation for consequences is taken by the negotiators. ‘In Garrett
v. Mazda Motors of Am., 844 S.W.2d 178, 181 (1992), the salesperson wrongly told buyer that
car had been used by salesperson, when the car was stolen and used by a car thief. It was
considered as fraud and not mere puffery.’ 14 c) Force – Many types of force may be used. Threat
to the opposite party, coercion using some bait, dominance over the other party to accept a
settlement, unemotional and unsympathetic attitude or a tantrum thrown during negotiation
process are some example of force. d) Stealing – Data stealing and obtaining information about
client in a dishonest fashion during ground work are some forms of stealing. e) Distracting –
forcing and arguing about minor, petty issues, pulling away from the main concern is a form of
distraction. f) Blaming – attacking the opposite party by blame or other techniques like
interruption, insults, gestures or sarcasm again resulting in an attempt to distract from the main
issue.

To achieve maximum benefit for the client and also to increase their bargaining capacity the
competitive negotiator uses these techniques. They may not use these techniques as often though.
The tougher the situation the more competitive they become. “Competitive bargaining has been
criticized for its focus on specific positions rather than attempting to discern the true interests of
the parties" 15 They will stop at nothing to impress their clients and justify the use of unethical
technique saying, the opponent was going to submit or it is necessary in the case of emergency or
stating it to be harmless. Competitive negotiators are also called as ' distributive negotiators'

13
Maddux, R. (1995). Successful Negotiation Effective “Win-Win” Strategies and Tactics. USA: Course
Technology Crisp.
14
Lyons, C. (2007). I Win, You Win. GBR: A & Black
15
Kennedy, G. (2004). Essential Negotiation. USA: Bloomberg Press.
Cooperative Negotiators

“Cooperative negotiations are particular type of negotiations where agents cooperate and
collaborate to achieve a common objective, in the best interest of system as whole. In
cooperative negotiation, each agent has a particular point of view of the problem and the results
are put together via negotiations trying to solve the conflicts posed by having only partial
view." 16 In the interest of everyone, these negotiators put together an optimized partial view and
cooperate to reach a common object. “Cooperative negotiation is a kind of negotiation that takes
17
advantages of the cooperative nature of the agents to maximize social utility" To reach a
settlement various offers or concessions would be considered through compromises. Focus is
made on reaching an agreement rather than a continuous dispute, keeping in mind some gain to
the opposite party as well. Expansion of resources between both parties is welcome. 18 When a
party does not have a strong bargaining position this method of negotiation is adopted. “In this
type of negotiation the tactics or techniques that negotiators use to reach an agreement are adding
issues, subtracting issues, substituting issues, and logrolling." 19 Characteristics of cooperative
negotiators are as below.

The negotiators give importance to the relationship with opposite party.

They would communicate with honesty.

They would use soft language in communication.

The attitude towards opposite party is friendly and cooperative.

They will be ready to compromise and sacrifice.

They will add certain items to the deal, even if the incur a loss.

They may talk less and listen more.

16
Harvey, B. (2008). T and G’s Guide to Effective Negotiation. Marshall Cavendish.
17
Ghauri, P. and Gronhaug, K. (2002). Research Methods in Business Negotiations. 2nd Edition. Elsevier Ltd. UK
18
Forsyth, P.(2009). Negotiation Skills for Rookies. Singapore, SGP: Marshall Cavendish
19
Fatehi, K. (2008). Managing Internationally: Succeeding in a Culturally Diverse World. Saga Publications.
To resolve a dispute the cooperative negotiator communicates the intention of cooperative
negotiation. Other ADR methods may also be proposed, the method of negotiation may not
necessarily be communicated. Problem and plan of negotiation may be sent to the opponent
negotiator. They show concern about the opposite party. A cooling off period is proposed in case
of no positive outcome. A cooling off period allows both parties to consider the happenings and
the proposed solutions. Time for evaluation of gains and loses is proposed in the meeting. There
after the negotiator can start with fresh new ideas and solutions. In order to reach a final
settlement, during the period the negotiator may give a concession or compromise on certain
terms. Benefit of this type of negotiation is they can tackle tough environments and smoothing
out the flow of negotiation. Cooperative negotiators are also called as ‘integrative negotiators’.

II. Comparison between Competitive and Cooperative negotiation tactics

In recent past, researchers have made two attempts to sort out methodically a wide range of
bargaining tactics, providing a more speculative cover to the nuts-and-bolts, tactical perspective
of the negotiating process, classified as either “cooperative" or “competitive". For example, a
competitive negotiator makes ridiculous, extreme opening demands which they actually hopes to
obtain, whereas a cooperative negotiator makes a modest and more realistic request.
Differentiation of the two helps the negotiator to identify various options whenever they present
themselves. Further emphasis on this example shows that when either type is called to make an
opening demand, they either result in an aggressive or friendly option. 20

Before making a comparison between cooperative and competitive negotiation style, let’s take a
look at some mathematical formulae to compare the two. Business as well as negotiation, both
has certain profit and loss. Lets make that calculation. The simple formula to calculate profit is
selling price minus cost price is equal to profit (SP-CP=P) and formula for loss is cost price
minus selling price is equal to loss (i.e. CP – SP = L). In a negotiation both parties are expecting
to gain something as a result. For this they have estimated certain figures as compared to the
market value. For example, a person decides to buy a digital camera which costs approximately ₤
100. Now he looks for where he can get it for less. A sales person gets the same camera for ₤ 75

20
Alternative dispute removal in a nutshell by Jacqueline N Nolan halley
and sells it for ₤100, profit being ₤ 25. The buyer approaches the salesperson and negotiates the
price. The salesperson can choose to sell for less or not bargain. In the sell for less there is no
loss incurred except a decrease in profit. The buyer on the other hand is in profit because he has
bought at less than market price. If the salesperson had not sold for less and offered freebies, like
a memory card or rechargeable batteries with a charger, he may have earned his profit but giving
away goodies has incurred some amount of loss. The buyer may not have profited in this case but
did get the free goodies which he may have had to otherwise purchase. Here profit being kind not
cash.

This is the kind of profit we look for when negotiating. The two can be called negotiation profit
and negotiation loss respectively. Considering the same situation in yet another way the loss that
the buyer incurred may not actually be a loss to him, or the profit the seller got may not be a
profit to him. The free goods may have been from old stock for other cameras. The buyer on the
other hand may already have the extras before buying the camera, hence not a real profit. Any
method that provides more profit as compared to other negotiation process may be considered
more effective.

Now taking a look at the characteristics of negotiators, cooperatives will add and competitive
will deduct. However addition may result in failure if the opponent does not agree. The condition
of the market at that time also determines the negotiation profit. For example, if a computer is
available everywhere at a same price and is also in high demand, the salesperson may not
decrease the profit margin. Thus the buyer does not gain any profit irrespective of where he buys
from. There the amount of negotiation profit is less. In a second scenario, the computer is not
available because it is outdated and has no demand. The seller has only a few pieces and is in a
hurry to clear the stock. Here the seller is willing to sell for less as few may actually buy. The
buyer may be willing to buy for more, because the computer is not easily available. Therefore the
amount of negotiation profit in this transaction is more because any amount above the purchase
price of the salesperson is a profit to him, and any amount less than the market prices is profit for
the buyer. Hence they both are at profit. Therefore when the condition of the market is in favour
of both parties and they are left with no choice, a competitive negotiator stands to gain and when
the condition of market favors one party it is always good to have cooperative negotiation.
Attitude of competitive negotiator is hostile towards the opponent whereas cooperative
negotiator is helpful. Competitive negotiators are only interested in themselves and in a
settlement that works only in their favour. On the other hand the cooperative negotiators are
outcome oriented and may even give away some demands if it results in a settlement. The
competitive negotiators make one sided demands without offering anything in return, they only
want to get but do not want to give. The cooperative negotiator may make a demand with
something in return for it. They also submit to the opposite demands with considering their own.
This form may be harmful if the opponent has adopted the competitive approach. Cooperative
negotiator gives most away in order to reach a settlement.

III. Why Competitive Negotiation is more effective than Cooperative Negotiation.

Cooperative Negotiation seems nice, but may not be as effective. There are certain reasons for
that. Since they give away, they subtract items from the deal resulting in negotiation loss instead
of negotiation profit. They offer their best deal, by adding items to an already existing list.
However, this may not be approved by the opposite party. The opposite party may consider other
options before accepting the deal. For example, someone selling a house may also provide
furnishing free, but the buyer may already have it, or the stuff may be available for less else
where. Therefore negotiation may not always give the expected result. In such a situation
competitive negotiator will demand a discount and refuse the additional. They may want to buy
the furnishing later or from elsewhere. Thus adding more items may not always have favourable
results. However, demanding a discount may result in an actual cash discount.

Successful negotiation depends on good ground work such as gathering information about the
opposite party before negotiation. The upper and lower limit of the terms of negotiation, need to
be discussed before negotiation starts. This help to arrive at a decision. The cooperative
negotiator may assume certain figures or may have a list of things to offer or might even have set
a lower limit of the offer they plan to give. Similarly they may get less than the anticipated
negotiation profit. The situation will be different in a competitive negotiators case, they accept
only a deal favourable to them. For example, 10 employees resign due to no increment on the
same day. The management negotiates and offers promotion, free transport and health insurance
but no increment. Jack is a cooperative negotiator and is only interested in a raise of 25% and
nothing else. Others take the offer, but company wants to retain them all and accept an increase
for Jack. Competitive Negotiators will never settle for less and thus obtain the desired outcome.

Competitive negotiators lie to get a favourable outcome. They modify the opponents perception
and convince them of how unfruitful the outcome would be if the deal goes as per the other
parties terms. For example, let’s say Martin has a land to sell. He doe not tell the prospect that
part of the land may be acquired shortly for road widening. Instead he points out the benefits of
road touch land, making the prospect feel like he is getting a good bargain. However, a
cooperative negotiator would not hide that fact.

There is always some extra amount which is to be distributed in the form of negotiation profit
during negotiation. Whoever can make best use of their skills gains maximum. For example, in
situation of divorce, there is a property, house, car and jewelry that needs to be distributed
amongst the spouses. A competitive negotiator will use coercion, assertive and tough language
and will not listen to the other. They will try and get maximum gain for their client, whereas the
cooperative negotiator will give rather than take. Therefore this situation only benefits a
competitive negotiator and not a cooperative one.

Competitive negotiators look for weakness in the opposite party and use it in their best interest.
For example, John needs to make a shift from one place to another. He decides to sell his
beautiful rugs and chandelier because the cost of transporting them is almost the same as
compare to buying a new one. Wilma comes and would like to buy, John demands more than she
expects. She doesn’t have that much money. Through conversation she learns that he needs to
leave the place in 2 days hence in hurry to sell the goods. She makes a final offer and puts the
cash in front of him, assuring she would pick them up in an hour. John has to accept because of
the hurry he is into and dispose off the goods. In this case a cooperative negotiator may have
given John the price he requested.

‘According to Russell Korobkint, cooperative negotiators failing to deal with third parties with
regard to the additional issues and the fact, Lawyers can only gain value if the deals terms are
personally skilled at using integrative bargaining tactics is often much less than what is assumed
in the typical negotiation classroom, where the acquired wisdom of industry-specific custom that
informs the baseline for transactions in the real world is rarely assumed. He also proves the point
the “more integrative potential of a negotiation, the more potential value of distributive
bargaining through an example of sale of non-liquid assets and an equal division for a divorcing
couple. These three reasons suggest that integrative tactics might be less valuable, compared to
distributive tactics and demonstrates an important limitation on the potential of integrative tactics
to create value for negotiators.’ 21

Therefore in situations where cooperative negotiation seems beneficial, it is actually a


competitive negotiator who takes bigger share of profit, as compared to cooperative negotiator.
Since competitive negotiators gain more benefit for their clients they are more efficient and
effective than cooperative negotiators.

Lying in Negotiation – Whether ethically permissible?

A. Ethics in Negotiation

Ethics are broadly applied social standards for what is right or wrong in a particular situation or
process. They differ from morals due to individual and personal belief. Ethics come from
philosophies which purport to define the nature of the world we live in or lay down rules for
living together. 22 A negotiator may use a different approach, but however during a negation they
may use various strategies that may work including unethical tactics. In the negotiating process
the law does not permit or encourage unethical techniques or practices. “In Ernst Young v.
Butte Mining plc 23 , misleading behaviour in negotiation led the court to set aside a purported
agreement to serve a notice of discontinuance." 24 ‘In the case of Spaulding v. Zimmerman 25 ,
Spaulding a minor was injured in an accident. There was a medical test conducted and doctors
claimed his wounds to be healed completely. The defence lawyers had him examined by their

21
legal negotiation by D Gifford

22
/services/dissertation-topic-and-titles-service.php"

23
United States Court of Appeals,Ninth Circuit.

BUTTE MINING PLC;  Tzarina & Travona Mining Corp.;  Central Butte Mining Corp.;
24
1962 Minn. LEXIS 789 (Minn. 1962)
25
Spaulding v. Zimmerman, 263 Minn. 346, 116 N.W.2d 704, 1962 Minn. LEXIS 789 (Minn. 1962)
doctors to find any substantive material for defence. They found an aneurysm, which they did
not disclose. After grant of settlement when Spaulding discovered this problem he sued to set
aside the settlement. The court granted his prayer and vacated the order.’ 26 ‘In Stare v. Tate 27 ,
there was a divorce negotiation and involved equal distribution of property. Due to
miscalculation of Stare’s she received less share, Tate’s attorneys were aware of this
miscalculation. The court ordered resettlement and gave her remaining claim.’ 28 However ‘in
case of Brown v. County of Genesee 29 , the diabetic employee could have got higher salary than
the one she got because county lawyers did not disclose certain things to her. Court held that she
or her lawyer did not check the public records and opposite party lawyers were not obliged to
inform her about any such records. The mistake was from both sides.’30

B. Lying in Negotiation

Telling the truth is one of the major issue in negotiating. Negotiators avoid disclosing the
complete truth. “Effectiveness in negotiations is central to the business of lawyering and a
willingness to lie is central to one's effectiveness in negotiations."31Lawyers may use various
types of lies to negotiate. False claims are made on the value and history of movable and
immovable property. Rates may be inflated or vice versa. They make false promises and may lie
about the authority and power given to them by the client. They may conceal their interest in the
outcome of the deal. They may also hold back facts regarding third party reservation or claims in
property. False or incorrect claims may also be made; they may not also disclose alternative
agreements which may prove more beneficial. “These lies operate to misrepresent our
willingness to settle, the price above which we will not buy (or below which we will not sell),
our client's insistence on custody, the presence or activities of competing bidders, or our

26
ibid
27
Stare v. Tate (1971) 21 Cal. App. 3d 432, 437
28
ibid

29
Court of Appeals of Michigan.

Chester E. BROWN, Jr., Plaintiff-Appellant, v. GENESEE COUNTY BOARD OF COMMISSIONERS, Defendant-


Appellee.

30
ibid
31
Ethics and Morals in negotiation, by AP Thambe
availability and readiness for trial." 32
‘In Virzi v. Grand Trunk Warehouse & Cold Storage
Co. 33 , the court set aside an agreement because lawyers did not disclose death of the client
before the settlement.’ 34 Similarly in case of ‘Kentucky Bar Ass'n. v. Geisler 35 , the attorney
was publicly reprimanded for failing to inform the defense attorney about the death of plaintiff
during the negotiation.’ 36

C. Is lying ethically permissible.

Honesty is the best policy is what many lawyers assert and that is most profitable in the long run.
They maintain that lying in negotiation is ineffective. Others seem to say that lying is not a
serious problem in negotiation, because those lies are ethically permissible. 37 “The American
Model Rules of Professional conduct states that a lawyer shall not knowingly make a false
statement of material or law to third person and rule 4.1 a paragon of charity says “A Lawyer
may not lie"" 38. “While Rule 4.1 prohibits the knowing misrepresentation of material fact or
law, Comment 2 expressly recognizes that statements regarding client values and settlement
intentions made during bargaining interactions do not concern material fact. It is thus ethical for
negotiating attorneys to deliberately misrepresent such matters. They may do this overtly,
partially, or through the nondisclosure of information" 39

Lawyers justify the usage of unethical tactics. The imposition of fairness standards would be
opposed by most attorneys for negotiators. “Client first" is a maxim that is deeply ingrained.
Absolute confidentiality is entitled to a client, unless the attorney believes the client intend to
commit a criminal act in future. 40 Whatever they do is for the benefit of client and to protect the

32
ibid
33
571 F. Supp. 507 (E.D. Mich. 1983)
34
ibid

35
Supreme Court of Kentucky. LE KENTUCKY BAR ASSOCIATION, Movant, v. Maria T. GEISR, Respondent.
96-SC-704

36
ibid
37
Etherington, B. (2008). Negotiation Skills for Virgins. Singapore, SGP: Marshall Cavendish
38
Acuff, F. (2008). How to Negotiate Anything with Anyone Anywhere Around the World. 3rd Edition. AMACOM
Books.
39
Adler, N. (2002). International Dimensions of Organizational Behaviour. 4th Edition. South Western, a division of
Thomson Learning.
40
Black, A (2009). Negotiate Successfully. GBR: A & C Black.
benefit of client they speak lies. According to the law any communication between the client and
attorney is subject to attorney-client-privilege is another justification to the lies they speak. The
attorney is not liable or forced to disclose certain details by any law. He/she may with hold it.
When disclosing certain facts during negotiation the same condition is applicable. However it
was held in ‘Mann v. Adams Realty Co., Inc. 41
, that the duty to disclose is particularly
compelling when one party has superior knowledge and the unknowing party has been induced
to take action it otherwise might not have taken.’ 42

Therefore, though lying is unethical it is permissible in certain conditions. Lawyers use those
conditions to gain benefit for the client. The non disclosure law supports the lawyer in keeping
certain secrets about his clients.

Conclusion

Competitive Negotiation is complex and deserves its own nuanced analysis. Supporters of
cooperative negotiation caricature the competitive negotiation tactics as limited to making
unreasonable demands and further then refusing to reach an agreement. A Stubbornness and
aggressiveness may have their place in approach though, competitive negotiation is not limited to
such behaviors.

Although cooperative negotiation may seem convincing they are not able to negotiate a
minimum profit for their clients. Competitive Negotiators have the upper when it comes to
benefit out of court settlements. Though the competitive negotiators use techniques like fraud,
misrepresentation, lies and coercion they give a profitable outcome. This is one of the reasons
why they are preferred over cooperative negotiators. This characteristic of competitive
negotiation makes people ignore the lies used by competitive negotiators.

Lastly a successful negotiation is one wherein both parties gain most and are happy and
comfortable with overall outcome. To build a reputation as a fair and honorable business partner

41
Beasor, T. (2006). Great Negotiators: How the Most Successful Business Negotiators Think and Behave. GBR:
Ashgate Publishing Group
42
Buchanan, D. and Huczynski, A. (2004). Organizational Behaviour. An Introductory text. 5th Edition
a confident negotiator focuses to improve his/her options away from the bargaining tables. They
also understand the needs of their counterpart, invoking external norms as a basis for decisions.