PROMOTING TRUTHFULNESS IN NEGOTIATION:
A MINDFUL APPROACH
V AN M. P OUNDS∗
I. I NTRODUCTION
If “only saints and fools can be relied on to tell the truth” in ne-gotiation,1 it is destined to remain a domain of deceit.2But does it have to be that way? Is deception endemic to negotiation? Are law-yers, in particular, doomed to be deceitful in its cour? I do not think so.
Nevertheless, when I recently broached the topic of truthfulness in negotiation with an esteemed ADR3 colleague, he was remarkably skeptical. In fact, he went so far as to say that lawyers should not be expected to be truthful in negotiation, and that any suggestion to the contrary would be pretty far-fetched.
Although I cannot speak with certainty to the rationale of my es-teemed colleague, I surmi that such a respon stems in great part from the stereotypical resolution of two competing ethical considera-tions. On the one hand, the lawyer is generally expected to be forth-right in her4 dealings with others;5
on the other, the lawyer is con-*Senior Counl and Special Assistant Attorney General, Department of Revenue, State of Missouri. B.A., Southeast Missouri State University; J.D., LL.M., University of Mis-souri-Columbia. With this Article goes my thanks to the faculty and students of the Master of Laws in Dispute Resolution program at the University of Missouri-Columbia, who thought-ful commentary, about the topic of this Article and otherwi, contributed to its writing. I am especially grateful to Professor Len Riskin, not only for sharing his insights on mindfulness, but also for facilitating my study of mindfulness in the first instance.
1.Gerald B. Wetlaufer, The Ethics of Lying in Negotiations, 75 I OWA L. R EV. 1219, 1233 (1990) (explaining the impact of high stakes and common assumptions upon truthfulness in negotiation).
2.Cf. Scott R. Peppet, Can Saints Negotiate?: A Brief Introduction to the Problems of Perfect Ethics in Bargaining, 7 H ARV. N EGOT. L. R EV. 83, 90-95 (2002) (debating the con-straints that a “saintly” lawyer may face in competitive negotiation situations). See generally discussion infra Part II.ibt报名
3.Alternative, or Appropriate, Dispute Resolution. Negotiation is a principal means of ADR.
4.Although I have generally made reference to the feminine gender in preference to the
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fronted with a more immediate and specific expectation that she will act as the advocate, and protector, of her client’s interests.6 Needless
to say, tho expectations may conflict in the real world of negotia-tion. Wor yet, when they do appear at odds, truth is frequently the first casualty.
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细节决定成败演讲稿Therein lies the rub. Negotiation is a dispute resolution process that, by definition, involves “conferring, discussing or bargaining to reach agreement.”7 Moreover, it is “an interactive communication process by which two or more parties who lack identical interests at-tempt to find a way to coordinate their behavior or allocate scarce re-sources in a way that will make them better off than they could be if they were to act alone.”8 Yet how can the parties be said to have reached an “agreement” if deceived in the process? And how can the parties truly be said to have coordinated their behaviors or allocated their resources if the communication process takes a less than truthful cour? I submit they cannot.
Deception rves not only as an impediment to integrative bar-gaining9 and the achievement of mutually satisfactory results, but also
as a practice inimical to a system of justice that depends so heavily upon negotiation to resolve the majority of its disputes.10 Con-quently, rather than condoning deceptive tactics, the legal profession should redouble its efforts to promote an “ethics infrastructure” more consistent with the evolving ttlement culture within which the law-
yer lives.11
So what can be done to encourage more truthful conduct in ne-gotiation? And, what can be done to reconcile the lawyer’s responsi-bility to provide “zealous” reprentation of her client’s interests with the competing, if not conflicting, desire that she participate in negotia-
the help
masculine for purpo of example in this Article, I would presume either to apply equally.
5.See, e.g., M ODEL R ULES OF P ROF’L C ONDUCT R. 4.1 (2002) (unless otherwi spe-cifically indicated herein, all references are to the Rules as revid through February 5, 2002).
6.M ODEL R ULES OF P ROF’L C ONDUCT R. 1.3 (2002).
7.W EBSTER’S N EW W ORLD D ICTIONARY OF A MERICAN E NGLISH 907 (3d ed. 1994).
8.R USSELL K OROBKIN, N EGOTIATION T HEORY AND S TRATEGY 1 (2002).
9.See generally id. at 111-47.
10.See Developments in the Law: The Paths of Civil Litigation, 113 H ARV. L. R EV. 1752, 1852 (2000)(citing Marc Galanter & Mia Cahill, “Most Cas Settle”: Judicial Promo-
厦门培训中心tion and Regulation of Settlements, 46 S TAN. L. R EV. 1339, 1342 (1994)) (emphasizing the prominence of negotiation as a means of dispute resolution).
11.James J. Alfini, Settlement Ethics and Lawyering in ADR Proceedings: A Proposal
to Revi Rule 4.1, 19 N. I LL. U. L. R EV. 255, 272 (1999).
2003] PROMOTING TRUTHFULNESS IN NEGOTIATION 183 tion in a candid manner? Some commentators believe the answer lies in a modification and modernization of the rules of professional con-duct for the lawyer-negotiator.12 However, as promising as that might sound, I doubt that it is enough.
In my opinion, the solution to finding a more truthful cour in negotiation may lie in the practice of mindfulness.
Mindfulness is an ancient Buddhist practice which has profound
relevance for our prent-day lives. This relevance has nothing to
do with Buddhism per or with becoming a Buddhist, but it has
everything to do with waking up and living in harmony with one-
lf and with the world. It has to do with examining who we are,
英语写作范文with questioning our view of the world and our place in it, and
swellwith cultivating some appreciation for the fullness of each momentregister是什么意思
we are alive. Most of all, it has to do with being in touch.13
By cultivating mindfulness, the lawyer opens the door to greater awareness, and reconciliation, of the lawyer’s multitude of con-cerns—including the issue of truthfulness.
In a n, the premi of this Article—i.e., the prospect that mindfulness will contribute to greater truthfulness in negotiation—may be viewed as a logical extension of recent efforts to expand the lawyer’s professional and personal horizons. Such efforts are exem-plified by the thought-provoking works of Steven Keeva14 and Leon-ard Riskin.15 Riskin, in particular, has gone to considerable length not only to explain how the practice of mindfulness may be of general benefit to the legal profession,16 but also to articulate how mindful-ness may be of positive effect on the lawyer as a negotiator.17 To the extent that mindfulness frees the lawyer from limiting mindts that tend to obfuscate opportunities to create value,18 it provides the law-yer with the opportunity to find greater truth and harmony within her-lf and, in turn, within her negotiation practices.
12.See discussion infra Part II.
13.J ON K ABAT-Z INN, W HEREVER Y OU G O, T HERE Y OU A RE: M INDFULNESS M EDITA-TION IN E VERYDAY L IFE 3 (1994).
14.S TEVEN K EEVA, T RANSFORMING P RACTICES: F INDING J OY AND S ATISFACTION IN THE L EGAL L IFE (1999).
substantial
15.Leonard L. Riskin, The Contemplative Lawyer: On the Potential Contributions of Mindfulness to L
aw Students, Lawyers, and Their Clients, 7 H ARV. N EGOT. L. R EV. 1 (2002); s ee Symposium, Mindfulness in the Law & ADR, 7 H ARV. N EGOT. L. R EV. 1 (2002).
16.Riskin, supra note 15, at 45-63.
17.Id. at 53-59.
18.See id. at 48-56.lake
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To practice mindfulness is to proceed upon a path to greater awareness.19 Hopefully, this Article will rve as a guide for the law-
yer-negotiator, and provide some food for thought along the way. Part II of this Article examines reasons why the lawyer may employ deceptive negotiation strategies, as well as the shortcomings of rule-bad controls. Part III explores the concept of mindfulness and how mindfulness may influence a more truthful cour in the lawyer’s practices. This Article concludes with the proposition
that the inter-ests of truthfulness in negotiation would be best promoted by ethical principles that are nurtured from within—and that mindfulness pro-vides a key to such internal ethical growth.
19.The characterization of mindfulness as a process, as well as a condition, is consis-
tent with its Eastern roots. The word Tao, Chine for “way” or “path,” metaphorically de-scribes life and the quest for meaning. K ABAT-Z INN, supra note 13, at 87.
