What's Fair

What's Fair is a landmark collection that focuses exclusively on the crucial topic of ethics in negotiation. Edited by Carrie J. Menkel-Meadow and Michael Wheeler, What's Fair contains contributions from some of the best-known practitioners and scholars in the field including Roger Fisher, Howard Raiffa, and Deborah Kolb. The editors and distinguished contributors offer an examination of why ethics matter individually and socially, and explain the essential duties and values of negotiation beyond formal legal requirements. Throughout the book, these experts tackle difficult questions such as:

• What do we owe our counterparts (if anything) in the way of candor or disclosure?
• To what extent should we use financial or legal pressure to force settlement?
• Should we worry about whether an agreement is fair to all the parties, or the effects our negotiated agreements might have on others?

Preface vii

Acknowledgments xi

Introduction: What’s Fair in Negotiation? What Is Ethics in Negotiation? xiii
Carrie Menkel-Meadow

Swimming with Saints/Praying with Sharks xlv
Michael Wheeler

PART ONE: OVERVIEW

1 Three Ethical Issues in Negotiation 5
David A. Lax, James K. Sebenius

2 Ethical and Moral Issues 15
Howard Raiffa

3 Negotiation Analysis 19
Howard Raiffa

4 A Code of Negotiation Practices for Lawyers 23
Roger Fisher

5 The Limits of Integrative Bargaining 30
Gerald B. Wetlaufer

6 Bargaining with the Devil Without Losing Your Soul: Ethics in Negotiation 57
G. Richard Shell

PART TWO: TRUTH TELLING IN NEGOTIATIONS

7 Truthfulness, Deceit, and Trust 79
Sissela Bok

8 Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation 91
James J. White

9 Promoting Honesty in Negotiation: An Exercise in Practical Ethics 108
Peter C. Cramton, J. Gregory Dees

10 On the Ethics of Deception in Negotiation 138
Alan Strudler

11 Deception and Mutual Trust: A Reply to Strudler 157
J. Gregory Dees, Peter C. Cramton

12 The Lawyer’s Obligation to Be Trustworthy When Dealing with Opposing Parties 168
Geoffrey C. Hazard, Jr.

13 Curtailing Deception: The Impact of Direct Questions on Lies and Omissions 175
Maurice E. Schweitzer, Rachel Croson

PART THREE: BARGAINING TACTICS

14 Negotiating Tactics for Legal Services Lawyers 205
Michael Meltsner, Philip Schrag

15 Smart Negotiating: How to Make Good Deals in the Real World 212
James C. Freund

16 Ethical and Unethical Bargaining Tactics: An Empirical Study 221
Roy J. Lewicki, Robert J. Robinson

17 Is Business Bluffing Ethical? 246
Albert Z. Carr

PART FOUR: NEGOTIATING RELATIONSHIPS

18 The Ethics of Respect in Negotiation 257
Jonathan R. Cohen

19 Everyday Negotiation: Navigating the Hidden Agendas in Bargaining 264
Deborah M. Kolb, Judith Williams

20 Bargaining and the Ethics of Process 270
Eleanor Holmes Norton

PART FIVE: NEGOTIATION AND AGENTS

21 Professional Detachment: The Executioner of Paris 305
Arthur Isak Applbaum

22 The Professionalism and Accountability of Lawyers 329
Murray L. Schwartz

23 A Causerie on Lawyer’s Ethics in Negotiation 350
Alvin B. Rubin

PART SIX: SOCIAL INFLUENCES AND IMPACTS

24 Lies for the Public Good 371
Sissela Bok

25 Does Studying Economics Inhibit Cooperation? 383
Robert H. Frank, Thomas Gilovich, Dennis T. Regan

26 Half-Truths: Protecting Mistaken Inferences by Investors and Others 397
Donald C. Langevoort

27 Mindfulness in the Law and Alternative Dispute Resolution 440
Scott R. Peppet

28 Protecting the Confidentiality of Settlement Negotiations 454
Wayne D. Brazil

29 Settlements and the Erosion of the Public Realm 486
David Luban

30 Public Access to Private Settlements 507
Carrie Menkel-Meadow

31 Expanding the Ethical Obligations of the Mediator: Mediator Accountability to Parties Not at the Table 513
Lawrence Susskind

Bibliography 519

The Contributors 526

Index 529

Carrie Menkel-Meadow is professor of law at the Georgetown Law Center in Washington D.C., and associate editor of Negotiation Journal. She is the chair of Georgetown Center for Public Resources Commission on Ethics and Standards in ADR and director, Georgetown-Hewlett Program in Conflict Resolution and Legal Problem Solving.

Michael Wheeler is Class of 1952 Management Professor at the Harvard Business School, a member of the Steering Committee of the Program on Negotiation at Harvard Law School, and editor of Negotiation Journal.

What's Fair is a landmark collection that focuses exclusively on the crucial topic of ethics in negotiation. Edited by Carrie Menkel-Meadow and Michael Wheeler, What's Fair contains contributions from some of the best-known practitioners and scholars in the field including Roger Fisher, Howard Raiffa, and Deborah Kolb. The editors and distinguished contributors offer an examination of why ethics matter individually and socially, and explain the essential duties and values of negotiation beyond formal legal requirements. Throughout the book, these experts tackle difficult questions such as:

• What do we owe our counterparts (if anything) in the way of candor or disclosure?
• To what extent should we use financial or legal pressure to force settlement?
• Should we worry about whether an agreement is fair to all the parties, or the effects our negotiated agreements might have on others?

Praise for What's Fair

"The assumption has long been made that even the most ethical of us will cheat during a negotiation. This book, What's Fair finally pulls together some of the most important papers dealing with this assumption into a single, badly needed volume. This is a book that should be read by everyone who negotiates or who cares about ethics. Which is to say, all of us."
–David M. Messick, Morris and Alice Kaplan Professor of Ethics and Decision in Management and co-director, Ford Center for Global Citizenship, Kellogg School of Management, Northwestern University

"What's Fair is a long-awaited treasure–a definitive book of readings on the full universe of questions about ethics in negotiation, introduced and tied together with helpful essays and explanations by the editors. This book is essential reading for everyone in law and business who is concerned about the ethics of negotiation."
–Gerald R.Williams, professor of law, Brigham Young University

"Carrie Menkel-Meadow and Michael Wheeler have written an important book on a topic long in need of analysis: the ethical responsibility of negotiators."
–Lawrence S. Bacow, president, Tufts University

"Carrie Menkel-Meadow and Michael Wheeler are at the forefront of scholarship and practice in negotiation. What's Fair is requisite for anyone desiring to be informed on negotiation–and intent on doing the right thing,"
–James F. Henry, president emeritus, CPR Institute for Dispute Resolution

"Few professional endeavors are as ethically polarized as negotiation. This comprehensive volume offers theoretical and practical insights on how negotiators can do good at the same time as they do well for themselves and their clients."
–Paul Brest, president, William and Flora Hewlett Foundation and former dean, Stanford Law School