Lawyers who see negotiation as a game to win are less likely to be completely honest with opposing counsel, according to a new study published in the Negotiation Journal.
Lawyers who scored high on a “negotiation game frame scale” were less likely to say they would correct an opposing counsel’s wrong impressions or disclose omissions, according to the study and an April 20 press release.
The study also found that lawyers who scored high on moral character in personality tests were less likely to apply a “game frame” to negotiation and were more likely to disclose information to opposing counsel.
The study was conducted by researchers at Carnegie Mellon University, the Naval Postgraduate School and Duquesne University.
One of the study co-authors, Taya R. Cohen, a professor at Carnegie Mellon University, told the ABA Journal in an email that the study shows that moral character and game framing play a critical role in determining how likely it is that a negotiator will honestly share information.
“Game framing permits low levels of honesty by inducing a competitive orientation in which rules are regarded as arbitrary, artificial constructs rather than moral or ethical requirements,” said Cohen, highlighting a bullet point in a recent presentation on the study.
The study relied on 215 lawyer volunteers who took a series of tests. One test asked questions about the extent to which the lawyers viewed negotiations through an adversarial game frame with artificial and arbitrary rules. The lawyers also took three personality tests that measure honesty, moral identity and a tendency to feel guilt.
Game frame questions asked lawyers to rate on a 1-to-5 scale their agreement with statements such as “Success in negotiation is a matter of who can outsmart the opposing party” and “The ethical standards in negotiation are no more binding or ‘real’ than any other social custom.”
Personality questions asked lawyers about their agreement with statements such as “I find it difficult to lie,” “I want to be famous” and “Being someone who has [moral] characteristics is an important part of who I am.” Another question asked about whether the lawyers would feel uncomfortable if they received too much change in a store and kept the money.
Cohen presented the lawyers with these three hypothetical questions:
• In settlement talks, the opposing counsel’s comments make clear that they think your client, the plaintiff, has no ability to work. You never made any such claim, and your client is able to work. How likely are you to continue to settlement without correcting the misimpression?
• 56.3% of the lawyers said they were unlikely or extremely unlikely to correct the misimpression, while 24.4% said they were likely or extremely likely to do so.
• You represent an at-will employee fired from a large company with no explanation. You are negotiating severance pay, a noncompete clause and other issues. The client had talked to the CEO and agreed to a list of companies for which they would not work for two years in exchange for enhanced severance and other economic benefits. When the opposing counsel presents the settlement document, it omits one of the companies on the noncompete list. How likely are you to continue to signatures without informing opposing counsel of the omission?
• 72.9% of the lawyers said they were unlikely or extremely unlikely to correct the omission, while 14% said they were likely or extremely likely to do so.
• You are representing the plaintiff in a mediation process involving a disability claim. The mediator informs you that the defendant has proof that the plaintiff is not disabled based on a video that they have just seen. In a private caucus with your client, you learn that they have a twin brother who came to his home to help with physical chores—including landscaping, roof repair, car mechanics and moving furniture. How likely are you to: Keep the twin brother information quiet to allow for a “gotcha” moment at trial? Ask the mediator to ask the defense for a specific demand amount if you can discredit the video? Disclose the twin brother to the mediator to disclose to the defense at the mediator’s discretion? Disclose the twin brother to the defense in a joint session?
• 81.7% of lawyers said they were unlikely or extremely unlikely to wait for a “gotcha” trial moment, while 5.6% said they were likely or extremely likely to do so.
• 52.8% of the lawyers said they were unlikely or extremely unlikely to ask the mediator whether the defense would meet a specific demand amount if they can discredit the video, while 30.8% said they were likely or extremely likely to do so.
• 29.1% of the lawyers said they were unlikely or extremely unlikely to inform the mediator about the twin brother to disclose to the defense at the mediator’s discretion, while 44.6% said they were likely or extremely likely to do so.
• 32.2% of the lawyers said they were unlikely or extremely unlikely to disclose the twin brother directly to the opposition team, while 42.1% said they were likely or extremely likely to do so.
The more that lawyers viewed negotiations through a game frame, the more willing they were to continue to resolution without correcting misimpressions held by opposing counsel in the working client and noncompete hypotheticals and the less willing they were to disclose honest information directly to the opposition team in the twin brothers hypothetical.
Similarly, higher levels of moral character were associated with higher willingness to disclose information, although the correlation was not statistically significant in the working client hypothetical.
The other study co-authors are Erik G. Helzer, a management professor at the Naval Postgraduate School’s Graduate School of Defense Management, and Robert A. Creo, an adjunct professor at the Duquesne University School of Law.
The authors caution that the lawyers who participated in the study were not representative of the population of U.S. attorneys, but they did come from many different types of practices and from many different jurisdictions. They also say the findings are correlational rather than causal.
The researchers plan a follow-up study with two law professors that will survey law students over the course of three years about moral character, game framing in negotiation, and willingness to honestly disclose information. The study could shed light on whether law school training reduces the likelihood of honest disclosure.
Hat tip to Bloomberg Law, which had coverage of the study.