Something quite remarkable happened in Capitol Hill in Washington DC recently (24 March 2023). The US top trade negotiator, Katherine Tai (a Juris Doctor from Harvard Law School), appeared before the House Ways and Means Committee of the US Congress to answer questions from lawmakers about the US trade policy. The North Carolina Republican Representative Greg Murphy said to Mrs Tai: “I think you are too nice person to be in the job that you are in [United States’ Trade Representative] … negotiators are usually very tough and sometimes mean people, they aren’t nice people like you are” and then he made a remark that she “had too nice a smile.” He continued: "I feel sorry for you”. Mrs Tai responded: “Well, let me just take off the nice a little bit. I don't need your pity”.
What lies behind these remarks (leaving aside the patronising aspects of Rep. Murphy’s intervention) is a well-established perception that deception is inherent in negotiation; that being hard and tough (intimidating, deceitful, bluffing and outsmarting the opponent) makes a great negotiator. If deception (a way of concealing the truth about one’s bargaining limits) is the most efficient way of reaching a compromise or settlement, then a truthful and fair negotiator will be at a disadvantage compared to a deceptive negotiator, making the truthful negotiator look soft and unlikely to get what they want in a negotiation.
This raises a fundamental question in negotiation: To become a great negotiator (one that is effective), should we be nice and honest in a negotiation (i.e., soft)? Or nasty and lie (i.e., tough)? For example, should a negotiator be guided by high ethical aspirations such as honesty, transparency, empathy, and fairness? Or should a negotiator be aggressive, use tricks and deceive the other side? Although in theory the answer appears to be obvious, in practice the line is blurred. For example, should the negotiator disclose his or her alternatives and priorities to the other side during a negotiation? Is it okay for a negotiator to bluff when not planning to do what they said they would do? Should the negotiator play the good-cop/bad-cop card? Can the negotiator exaggerate the client’s bottom line?
Also, asymmetries allow strategic opportunism. In this sense, a stronger side would normally adopt a “take-it-or-leave-it” approach that would give its side a bigger share of the pie while the weaker side would conceal the weakness by lying about it and claiming a strong position. Is this fair game?
All these questions are particularly tricky for lawyers for at least two reasons. First, most lawyers are bound by certain professional rules of conduct, which means that certain ethical behaviour is expected of lawyers when representing clients. The obvious rule for lawyers is not to lie. A lie is a false statement made by someone who knows its falsity and has the intent to deceive another about its veracity. In this sense a lawyer withholding material information, misrepresenting a material fact or misleading the other side about its true settling point would be a forbidden deception. So if the rule of the game in negotiation is to conceal one’s true position (otherwise ‘bargaining’ would not happen), then, the argument goes, a lawyer would not be an effective negotiator because it would be unethical for the lawyer to act in such a manner.
To avoid the ethical conundrum, some will say that there is a difference between lying and other forms of deception. Some may say, for example, that it is acceptable conduct to inflate a proposal to anchor the opposite side to a higher end, or to withhold information to strengthen the appearance of a strong Plan B to improve the negotiator’s leverage. Nothing is absolute, of course, and what is deceitful will depend on the context of the situation. Nevertheless, I would argue that all forms of deception are essentially tricks (as opposed to tactics). Tricks by definition are unethical practices which should be avoided in negotiations because they can severely damage the negotiator’s credibility, destroy the trust between the two sides and derail the negotiation process.
The second problem for lawyers is their adversarial nature. Lawyers are trained in law schools to treat the other side as adversaries rather than partners. Lawyers are also expected to try and achieve the best possible terms for their clients (“I win/you lose” approach) which is at odds with some basic principles associated with negotiation processes such as empathy and fairness. This may affect the lawyer’s ability to conduct good faith bargaining.
The above invites reflection about how lawyers should conduct negotiations. The first thing to say is that there is a false dichotomy here. It is not about being nice (soft) or tough (hard) in negotiations. One can push hard on a legitimate concern but soft on a bargaining position. In fact, some hard bargaining does not necessarily imply dishonest conduct. For example, being ambitious in your demands is not unethical; asking for something unimportant only to drop it later, or making unimportant concessions in order to encourage the other side to making concessions, are acceptable practices as long as they are justified in the circumstances and both sides have similar bargaining power. If, however, the other side accepts an offer because it believes what was said then it becomes a misrepresentation of fact and, therefore, unethical conduct.
The fundamental question is to decide how to be both ethical and effective in negotiations. In my view, this is achieved by adopting a creative problem-solving strategy instead of an adversarial or hard bargaining one. The following are some skills and ethical practices:
- Empathy. To meet the interest of both sides one needs to put oneself in the other side’s shoes.
- Openness. Engage in honest disclosure of information with the other side. This will help build trust between the two sides.
- Listen. Engage in active dialogue by listening effectively. The objective of listening is to gather information, to understand, and to respect the other side. Effective listening requires an open mind, not to judge or argue, to ask broad questions and to take seriously the concerns of the other side. This will provide the space for creative solutions.
- Objective. The use of rational explanations and use of objective data is an effective way to move from positional bargaining to a rational discussion, resulting in a fair outcome for both sides.
- Ethical. Do not manipulate or deceive the other side to get an advantage.
In other words (and to conclude), try to be the best version of yourself when negotiating. And remember, in negotiations the benefits of being ‘nice’ will always outweigh any benefits of being ‘nasty’.
*About the author: Luis González has over 25 years of experience in international dispute resolution and international negotiations. He has acted as Mexico’s trade and investment negotiator, consultant to the UN Conference on Trade and Development, and has advised the UK government on the preparation and conduct of negotiations with the European Union, the United States, and several countries in the Pacific region. Throughout his career he has been engaged in more than 30 international legal disputes and more than 20 international treaty negotiations.
Luis teaches the course “Negotiation Skills”, which will take place between 5 - 16 June 2023 at the University of Aberdeen. The course consists of two weeks of presentations and interactive negotiation simulations. The content of the sessions includes interstate and corporate diplomacy, skills, negotiation strategy and planning, and problem-solving approaches to conflict resolution. Visit here for more information and to register.