|ETHICS AND PROFESSIONAL IDENTITY
ETHICS IN NON-ADVERSARIAL PRACTICE
|“What do we owe other human beings when we
something that we or our clients want?... What do we owe others
who might be affected by what we do in negotiations?”
Carrie Menkel-Meadow, Introduction, in
This seminar will explore the kinds of “ethics” we employ when we are trying to act in problem solving, peaceseeking or less adversarial forms of lawyering or third party neutraling. We will begin with negotiation as a process of both problem-solving and more conventional legal, political, social, and commercial decision making. We will then consider some of the newer forms of non-adversarial practices engaged in by both lawyers and other professionals, who seek to solve human, social, political and legal problems with means other than conventional legal advocacy, such as mediation, consensus building, diplomacy, facilitation and planning. In some cases professionals serve as the third party neutrals, facilitating other people’s decision-making processes, and in other cases professionals may serve as representatives of parties in such processes. As a lawyer you may also be a party directly in some matter which might employ one of these methods of dispute or conflict resolution or transaction or policy planning. Our aim in this course will not be to teach you particular ethical rules, for although there are growing bodies of proposed regulations in these areas, we are more concerned with your developing an “ethical sensibility” or judgment about what are often difficult and competing demands for good practice. As John Badaracco, a business ethicist has said, hard ethical choices are those in which we must choose between “right and right,” not right and wrong (Defining Moments: When Managers Must Choose Between Right and Right (1997). The key here is to develop what Donald Schon has called a “reflective practice” (one in which you carefully consider what you are doing and do not respond in rigid and automatic and unreflective ways (The Reflective Practitioner: How Professionals Think in Action (1983).
We are more interested in examining the foundational principles that inform professional choices and the functions that particular processes are designed to serve. What difference does it make if you are trying to solve a problem, “win” a lawsuit, negotiate a sale, or raise venture capital for a new project? Does it matter with whom you are working? What effects do contexts, particular players, culture, and professional norms have on how you will do your work? Should you care about doing what is “right” for those “inside” of a particular problem or should you also care about the people, not present in the negotiation or mediation, who might be affected by what you do (such as children in divorce, future generations in environmental or development matters, employees in a merger and acquisition)? There are some of the questions we will be exploring.
We will explore these issues by reading excerpts from two books, which you should purchase from the bookstore, Carrie Menkel-Meadow and Michael Wheeler, eds. What’s Fair: Ethics for Negotiators (Jossey-Bass, 2004) and John Forester, The Deliberative Practitioner (MIT Press, 1999) (they are also on reserve in the library), doing some role-plays and exercises, reviewing some case studies and problem narratives, and watching some videotapes of negotiated or mediated activity.
Although the course does not assume knowledge of the more conventional “rules” about adversarial lawyering ethics, found in the Model Rules of Professional Conduct, some familiarity with those rules will be helpful and we will explore a few of the Model Rules in their particularity so you might want to purchase a copy of the Rules if you don’t already have one.
We will meet four times in two semesters; March 17 and April 21 this spring, and September 22 and November 10 this fall, from 6:30-9:15 pm at my house in northwest Washington DC (dinner will be served on all occasions and directions will be provided in a separate memorandum). Attendance is mandatory at all four sessions to receive credit for the course.
The course will receive one credit and will be graded pass/fail. You will be asked to complete two five page essays, one due at the end of this semester, due May 11, 2004 and the second will be due at the end of the fall semester (date to be announced).
It might make sense for you to keep a journal of some kind (not required) of your reactions to the readings and classes so that you will be able to draw from your own and others’ reflections on the materials over what is a relatively long period of time in modern academic life.
The essay which will be due this semester on May 11, 2004 should address itself to the following questions:
Are there any “universal” or generalizable obligations we owe to others in negotiation? Do we need special understandings for direct negotiations when we negotiate on behalf of ourselves and different understandings when we are representing others? To what extent does the context or professional culture of a negotiation matter? Have you formulated any “guiding principles” for yourself in how you think you will approach others when you negotiate? Where do those guiding principles come from? Give some examples.
Class 1: March 17, 2004 Overview and Introduction to Negotiation Ethics
Reading: What’s Fair: Introduction (Chapters by Menkel-Meadow and Wheeler)
Deliberative Practitioner: Introduction and Chapter One
(After the first class is over, read Part One, What’s Fair: Overview, Ch. 1-6)
Class Exercise: Negotiation Quiz
Introduction: Course and Class Members
Negotiation Ethics Challenges: Where do notions of negotiation ethics come from? How do we resolve ethical dilemmas of duties to self and duties to others? What are our sources of “ethics” and “morality” in negotiation – are these different? Are there different conceptions of ethics in negotiation processes and in assessing the “ethics” of negotiation outcomes?
Developing a “reflective practitioner” stance toward one’s work
Class 2: April 21, 2004 Relationships in Practice: Trust, Candor, Agent-Principals
Reading: What’s Fair: Ch. 7-13 (Part Two: Truth Telling); Ch. 18-20 (Part Four: Relationships)
and Ch. 21-23 (Part Five: Negotiation Agents)
Deliberative Practitioner: Ch. 2
Class Exercise: Video tapes of negotiations: what is owed to others?
Relationships–human, social, commercial, legal and familial – How are these different from “professional relationships”? Can professionals do things ordinary humans can’t? (Lie? Exaggerate? Demand?)
How are relationships constructed in human problem solving, with parties directly? With agents?
Role of “groundrules” before or during interactions? What are our explicit understandings of how we work together? What are our implicit understandings? What are their sources?
Class 3: September 22, 2004 Adding Problem Solvers/Helpers–The Third Party Neutral and Duties to Others
Reading: Deliberative Practitioner: Ch. 3, 5, 7
What’s Fair: Ch. 14, 15, 16, 31
How should third party facilitators/mediators behave in facilitated negotiations? What should they do when the parties engage in “problematic” tactics? What are the animating values when a third party is added to the table? How “neutral” does such a party have to be? Can one be a neutral facilitator/mediator and still have responsibilities for accountability for outcomes achieved? What “third party” interventions/actions are “appropriate”? Are the third party neutral and the parties themselves responsible to anyone else outside of a negotiation or mediation?
Class 4 November 10, 2004 The Ethics of Participatory Deliberation: Consensus Building and Other Processes
Reading: Deliberative Practitioner, Ch. 4, 6, 8
What’s Fair, Ch. 24-30
Class Exercise: Review of Case Study (to be distributed)
When newer processes of decision making, in both the public and private arena, are used (such as multi-party mediations, consensus building fora, mass tort settlements, international diplomatic negotiations, deliberative democracy exercises, environmental sitings, policy planning, negotiated rule-making) who sets the “rules”? What ethics of participation and practice apply here? For the parties? For their representatives? For the “neutrals” if there are any? What underlying values, foundational principles of professionalism or democractic goverment apply here?
Note: If any of you enrolled in the class feel you don’t know enough about the underlying processes of negotiation, mediation, consensus building or democratic deliberation to discuss their ethics, you can do some preparatory or supplemental reading in:
Roger Fisher, William Ury and Bruce Patton, Getting To Yes (Penguin, 1991)
Carrie Menkel-Meadow, “Toward Another View of Legal Negotiation: The Structure of Problem-Solving,” 31 UCLA L. Rev. 754 (1984)
Howard Raiffa, The Art and Science of Negotiation (Harvard-Belknap, 1983)
Robert Mnookin, Scott Peppet and Andrew Tulumello, Beyond Winning (Harvard-Belknap, 2000)
Christopher Moore, The Mediation Process (3rd ed. Jossey-Bass, 2003)
Kim Kovach, Mediation (2nd ed. West, 2002)
Lawrence Susskind, Sarah McKearnan and J. Thomas- Larmer, The Consensus Building Handbook (Sage, 1999)
Susan Carpenter and W.J.D. Kennedy, Managing Public Disputes (Jossey-Bass, 2001)
James Bohman, Public Deliberation (MIT Press 1996)
Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Harvard, 1996).
Kenneth Arrow et.al. Barriers to Conflict Resolution (Norton, 1995)
David Lax and James Sebenius, The Manager as Negotiator (Free Press, 1986)
Deborah Kolb and Judith Williams, Everyday Negotiations (Jossey-Bass, 2003)
Carrie Menkel-Meadow, “The Lawyer as Consensus Builder: Ethics for a New Practice, 70 Tenn. L. Rev. 63 (2002).
Copyright 2004 Carrie Menkel-Meadow. Teachers are free to copy these materials for educational use in their courses only, provided that appropriate acknowledgment of the author is made. For permission to use these materials for any other purpose, contact the author.