Is Principled Negotiation More Effective Than Distributive Negotiation In Encouraging Compliance With Lawyer's Ethical Obligations?

INTRODUCTION

Behind every negotiation are many ethical decisions that have to be undertaken in a moment’s notice. This is especially true for lawyers representing their clients in negotiations where they are heavily regulated by ethical and professional rules to act with honesty and integrity.[1] Consequently, lawyers not only need to promote their client’s interests in a negotiation but also ensure that their decisions do not violate any ethical obligations. In a traditionally adversarial legal system, lawyers are often predisposed to undertake a distributive (or adversarial) approach to negotiations.[2] However, Fisher and Ury presented an effective yet revolutionary alternative model of negotiation known as ‘principled negotiation’, which primarily focuses on understanding the parties’ interests to resolve dispute.[3] Given that the negotiation process (where clients are represented) is largely driven and determined by lawyers, it is crucial to the administration of justice that those who drive the process, do so in an ethical manner.

Against this backdrop, this essay argues that principled negotiation is more effective than distributive negotiation in encouraging compliance with a lawyer’s ethical obligations in negotiations as its approach to dispute resolution is superior in promoting honesty and integrity. This essay focuses its analysis in a lawyer’s duty to act honestly and with integrity in the Australian context and proceeds in three parts: First, this essay asserts that the collaborative approach used in principled negotiation allow lawyers to promote and protect the interests of their clients in a competent manner without sacrificing compliance of a lawyer’s ethical duties. Second, this essay argues that the focus on interests and relationships in principled negotiation levels is useful in levelling the playing field in cases where power imbalances exist. Hence exploitative and dishonest behaviour are discouraged. Third, this essay contends that the adoption of principled negotiation is more effective than distributive negotiation in affecting normative change in attitudes of lawyers to act with honesty and integrity in negotiations.

PART I: MAXIMISING VALUE WITHOUT SACRIFICING HONESTY

This part argues that principled negotiation is more effective than distributing negotiation in allowing lawyers to promote and maximise their client’s interests without sacrificing honesty. It is noted that the lawyers are under an ethical duty to act in the best interests of their clients[4] in a competent and diligent[5] manner whilst having regard to their paramount duty to the court and the administration of justice.[6] Furthermore, lawyers are also specifically prohibited from knowing making any false statements to their opponents in relation to the dispute[7] and must take all necessary steps to correct any false statements made by them to their opponent as soon as they become aware of it.[8] It is settled in case law that the duty of honesty and integrity also extends to negotiations[9] and breaching these rules could result in disciplinary action for the lawyer and expensive litigation against their clients.[10]

Against this backdrop, it is often expressed that a lawyer’s main job in a negotiation is to promote and protect the interests of their clients.[11] As such, a distributive negotiator may perceive that some dishonestly or concealment of relevant information as an essential component in maximising client value.[12] This is because, suspicion and scepticism is often rife in negotiations in an adversarial setting.[13] As such, lawyers adopting a distributive negotiation model would derive an incentive to conceal information or outright lie in some cases in order to test the position of the other party without giving away too much information as it may weaken their negotiating power.[14] However, it is asserted here that a principled negotiation allows a lawyer to promote and protect their clients’ interests without needing to act dishonestly. ?

Focusing on interests – maximising value in negotiation outcome

Identifying and understanding the interests of each party is an integral element of a principled negotiation. This involves asking why a particular disputant may hold a particular position or make particular demands as oppose to their positions, which denotes what they want in resolving the dispute.[15] This is crucial in the negotiation as it help parties to arrive at a ‘wise agreement’ and identify opportunities beyond the subject matter of the dispute to ‘enlarge the pie’ and maximise the overall value in the negotiated outcome.[16]

This process of identifying and understanding the parties’ interests in crucial in maximising value as it may assist parties in identifying options that may not be found if they had engaged in a distributive bargaining where parties simply make concessions.[17] Even if it can be argued that a distributive negotiation can maximise the value of the negotiated outcome through an adversarial approach,[18] the value is still likely to be limited, as parties do not avail themselves to identify interests that extends beyond the subject matter of the dispute.[19] As such, principled negotiation may in some cases go beyond maximising value to creating further value for their clients.

From an ethical perspective, these demonstrates that principled negotiation in fact promotes a lawyer’s duty to act in their client’s best interests[20] and duty of competence and diligence[21] as they not only protect their client’s interests but also promoted and maximised their interests. This is unlike distributive negotiation where the value derived is only confined to the facts relevant to the subject matter of the dispute.

It may be argued that the interests of the parties may not always align and sometimes they may also be diametrically opposed.[22] However, even if the subject matter of the dispute cannot be purely solved through principled negotiation, parties could resolve other aspects of the dispute such as the process to be used to resolve the dispute or an objective standard that still serves the interests of both parties.[23] Here, parties are still able to gain additional value from such agreement even though the main dispute has not yet been resolved.[24]?For example, clients may benefit by being able to resolve the dispute with less time and costs or having a dispute resolved by a criteria that both parties are comfortable with. Hence, lawyers undertaking principled negotiation may still maximise client value even though the main dispute may not be resolved through principled negotiation. ??

Separating people from the problem – enhancing relationships

In addition to creating value by creating solutions that satisfies the interests of the parties, principled negotiation also help parties maintain and enhance relationship between disputants by separating the people from the problem.[25] In doing so, lawyers using principled negotiation do not see each other as ‘opponents’ but a ‘negotiating colleague’ where they collaboratively work together to solve a problem.[26] In this context, it is argued that principled negotiation also creates additional value by preserving the relationships between disputants and also between lawyers in the negotiation, as it may be beneficial in the long run. ?

Principled negotiation clarifies that negotiators are interested in both the substance of the dispute and also the relationships in it.[27] As such, negotiators need to separate the substance of the dispute with the people problems in it.[28] It is essentially argued here that by engaging with the other negotiators’ concerns and dealing with the relationship problems separately from the substance of the dispute, disputants may be able to form a good working relationship with each other.[29] This is in contrast with distributive negotiation where negotiators in the negotiation are often seen as opponents.[30] At best, the relationship between parties would at best arrive at a truce, as they tend to focus on the substance of the dispute itself without paying much attention to the relationship aspects of the dispute.[31] As such, distributive negotiation may not enhance the relationship between disputants as compared to principled negotiation.

The improved relationship between parties may be of particular value to clients as some disputants may seek to regain or maintain a relationship that they spent a long time to build or that they may need the a working relationship with the other side after the dispute is settled (eg. Needing to continue in a commercial project together[32] or divorced couples needing the working relationship to take care of children[33]). This again better promotes a lawyers duty to act in the best interest of their clients in a competent and diligent manner compared to distributive negotiation as the clients interests are maximised.

It may be argued that principled negotiation is ‘too soft’ and that parties may be too ready make concessions that ultimately undermines their client’s interests as they value the relationship over the outcome of the negotiation.[34] However, this risk could be mitigated by a negotiator’s use of BATNA. This acts as a safeguard for lawyers in negotiations as it informs them of the extent to which concessions can be made without jeopardising their clients’ interests.[35] Furthermore, it also informs them of when it is no longer worthwhile to remain in the negotiation as the value of their BATNA exceeds the value of the current negotiation agreement.[36] Hence in either context, even if principled negotiation is focused on maintaining and building relationship, it is unlikely be done at the expense or detriment to the clients as lawyers are safeguarded by understanding and strengthening their BATNAs.

Preserving Honesty and Integrity in negotiations

Apart from maximising client values, principled negotiation also ensure that lawyers act honestly and ethically in a negotiation setting. This is because lawyers stand to benefit in a principled negotiation by acting in an honest, open, courteous and ethical manner. From the perspective of identifying interests, lawyers using principled negotiation are discouraged from concealing vital information relevant to the dispute as this may limit the value that could be realised had they been open in disclosing their interests to the other side.[37] From the perspective of gaining relationships, lawyers are again discouraged from acting in a dishonest or discourteous manner as this may damage the working relationship between disputants and prevent them from resolving the dispute effectively through principled negotiation.[38] Hence, this demonstrates that principled negotiation allow lawyers in negotiation to both maximise and increase client value through the discovery of interests and creating relationships without sacrificing their duty to act with honesty and integrity in the negotiation.

This is unlike distributive negotiation where some may be incentivised to conceal information or behave in an adversarial manner due to scepticism and suspicion that the other side may later use the information disclosed against them.[39] It is not asserted here that distributive negotiation is inherently dishonest, however its method provides the platform and incentives for some to act in a dishonest or unethical manner.

It may be argued that principled negotiation may not necessarily be a more ethical alternative to distributive negotiation as it does not itself contemplates these values of honesty and integrity.[40] Further, complete candour and revealing information indiscriminately is discouraged in principled negotiation.[41] Hence, it is argued that this also gives room to lawyers in principled negotiation to act dishonestly by concealing information. There are two possible responses to this critique. First, given that the effectiveness of principled negotiation hinges on trust and relationship between parties to ensure that the interests are understood and viable options are generated, lawyers are less likely to act in a dishonest manner or conceal information as it may jeopardise their efforts to resolve the dispute and damage relationships.[42] Second, a decision as to when disclosure of vital information should be made has to be distinguished from cases where parties fail to disclose with an intention to mislead the other party.[43] The latter would be unethical as it seeks to undermine the honesty and integrity of the negotiation whilst the first is likely to be categorised as legitimate negotiation tactics.[44] Hence, lawyers are still more likely to comply with their ethical duties if they use principled negotiation.

Implications on Lawyers Ethical Duties

Ultimately, this section demonstrates that principled negotiation provides a viable solution to allow lawyers in negotiation to act in the best interests of their clients in a competent and diligent way on the one hand without being dishonest or unethical on the other. This is unlike a distributive negotiation where parties are often encouraged to ‘win at all cost’ which may in some instances, motivate some to act dishonestly or unethically. As such, principled negotiation is superior in allowing lawyers to maximise their client’s interests without compromising on their ethical obligations. ?

PART II: ADDRESSING POWER IMBALANCES

This part argues that the principled negotiation is more effective than distributive negotiation in addressing power imbalances in negotiations. Imbalances of power between parties are inevitable in any negotiating environment due to differences in access to resources, disputant’s position relative to the other party, cultural differences and information asymmetry.[45] As such, a negotiator using distributive negotiation may be incentivised to exploit these power imbalances to gain an advantage over the ‘weaker party.[46] ?This may come in the form of concealing vital information, lying or be engaged in exploitative behaviour (eg. Threats or discourteous behaviour) as they know that may gain an advantage in the negotiation by exploiting the ‘weaker’ party.[47] Against this backdrop, it is argued principled negotiation provides a way for parties to strengthen their negotiation position to avoid exploitative behaviour, thereby strengthening the integrity of the negotiation. ?

Equalising Power with BATNA

As described above, lawyers using principled negotiation would commonly consider what the BATNA (or WATNA) would be if the negotiating parties do not arrive at a negotiated outcome. A key characteristic of a BATNA is that it does not require the consent of the other party in dispute for it to be a viable option.[48] Relevantly, parties would often consider what could be done in order to strengthen their BATNA and weaken the BATNA of the other side. A good understanding of the BATNAs of the parties is advantageous in this context as it places even a ‘weaker’ party in a good negotiating position, as is also a form of power that can be legitimately used by parties in a negotiation.[49] Here, BATNAs can be used in multiple ways to strengthen a party’s position in a negotiation. First, the ‘weaker’ party may disclose their BATNA to the other party to make it known that they are not pressured to commit to a negotiated outcome that is disadvantageous to their interests.[50] Second, parties may use BATNA to inform themselves of when is a right time to walk away from the negotiating table.[51] Third, they may attempt to weaken the other party’s BATNA in order to keep them committed to the negotiation process.[52]

These strategies are significant in this context as it functions to level the power imbalances in the negotiation by removing the incentives for parties to act in a dishonest or discourteous manner for unfair gains.[53] This can be contrasted with distributive negotiation where power imbalances are used as a tool to ‘win’ the negotiation and may in fact encourage the use of power imbalances to exploit weaker parties. In contrast, the use of BATNAs in principled negotiation reinforces and strengthens a lawyer’s compliance with their duties of honesty towards their opponents in negotiation.[54] Whilst it may not completely remove all power imbalances, however it would have left weaker parties at a better position than if they negotiate using a distributive negotiation model.[55]

It may be argued that BATNAs may be misused by unreasonably making threats to the other side or by unreasonably walking away from the negotiation and thus be counter-intuitive in promoting ethical behaviour.[56] However, this criticism fails to conceive the fact that the strength of a BATNA may change according to the information disclosed at the negotiation and what is initially determined as a BATNA may well be a WATNA after hearing certain facts. Hence should both parties be using principled negotiation to resolve a dispute, one might also be very careful in using BATNAs to threaten the other party to walk away as this may put them at a disadvantageous position by doing so.[57] Further, it may also damage the relationship between negotiators if such threats are unreasonably made.[58] As such, it is unlikely to be in any party’s interest to use their BATNAs in this way and would discourage parties from acting in this manner.

Using Objective Standards

The use of an objective criteria or standard to base the negotiated agreement upon is one of the core components in principled negotiation.[59] This refers to the use of objective criteria that can be agreed upon by all parties in the dispute to assess particular options and determine if it can be accepted by both parties.[60] This may include the use of scientific evidence, laws and regulations, industry standards or market prices as benchmark to be used upon a base agreement.[61]

In this context, the use of objective standards is crucial as it avoids distributive bargaining between parties and allows parties to arrive at an agreement in a principled manner rather than pressure.[62] This is key to levelling the power imbalances between parties, as weaker parties are less likely to be pressured into accepting a disadvantageous proposal if both parties are focused on developing solutions based upon a standard that has been agreed upon.[63] This again minimises the incentives for parties to enter a distributive bargain which may incentivise some parties to exploit weaker parties where there is no benchmark for parties to refer to when assessing whether it is in their interest to accept a particular option to resolve the dispute.[64] As such the use of objective standards in principled negotiation is more effective in ensuring a lawyer’s compliance of their duty of honesty, courtesy and to the administration of justice.

It may be argued that an objective criteria or standard may not be found in every dispute due to differing values and definitions of fairness. As a result, it may be difficult for parties to agree to a standard that is truly neutral to the dispute at hand.[65] However, the mere use of a standard would itself place both parties at a better position for two reasons. First, as standards are agreed by both parties, they would both be able to share in deciding a standard that can be acceptable to both even if the standard may favour one side more over the other.[66] Second, as all parties’ are subject to the same standard, this itself places ‘weaker’ parties at a more advantageous position as it prevents other parties from changing the benchmark as to what an acceptable option is.[67]

Implications on Lawyers Ethical Duties

This part ultimately demonstrates that the use of principled negotiation is more effective than distributive negotiation in discouraging parties from engaging in dishonest or unethical conduct in negotiations where power imbalances exists. This in turn strengthen lawyers' compliance to their duty of honesty to their opponents and to the administration of justice and discourages them from engaging in illegitimate or unethical negotiating techniques.

PART III: PROMOTING NORMATIVE CHANGES

This part asserts that the adoption of principled negotiation is more effective than distributive negotiation in affecting normative changes in the legal profession to encourage more ethical practices amongst legal practitioners who represents their clients in negotiations. As the Australian legal system is inherently adversarial, lawyers are predisposed to approach negotiations as a distributive bargain rather than a collaborative process to create ‘win-win’ solutions.[68] Hence, the adversarial nature may in turn provide incentives to lawyers to act dishonestly or unethically in order to maximise their client’s interests.[69] Consequently, there needs to be a change in lawyers’ mindset in approaching and conceiving the negotiation process in order to encourage stronger compliance with ethical standards and values at a systemic level. It is argued here that the promulgation of the use of principled negotiation can be instrumental in driving this change and is more effective than distributive negotiation in encouraging ethical behaviour.[70]

Re-conceptualising the role of lawyers in negotiation

Traditionally, lawyers tend to adopt a distributive negotiation where their role is to conduct the ‘advocacy’ to maximise their client’s interests and views the process as a zero sum game.[71] As such this left some room for lawyers to act unethically or dishonestly to reach the goal. This is even so when lawyers are aware of their ethical obligations to carry out their legal practice with honesty and integrity. Whilst it is not asserted here that distributive negotiation is necessarily an unethical one, it signals the need for a change in the approach to lawyering in negotiation.

The promotion of principled negotiation as a preferred approach to negotiation is instrumental to facilitate such chance as the model re-conceptualises the role of a lawyer in three ways. First, lawyers act as a facilitator in the negotiation rather than an advocate.[72] This means that parties’ lawyers work more collaboratively together in order to solve the problem. As discussed above, this is likely to encourage lawyers to act honestly and ethically to preserve the relationship between disputants to ensure an effective negotiation process.

Second, this is also likely to re-conceptualise the role of 'advocacy' in negotiation. Apart from the adversarial advocacy that is commonly practised in court, the ethos in negotiation where parties come together to reach an amicable solution warrants a different type of advocacy.[73] Here, principled negotiation encourages lawyers to act in the best interest of their clients by coming in good faith to understand the interests and concerns of the other party and formulating a viable solution maximises their interests.[74] This would in turn remove the incentive for lawyers to act unethically as it is actually in their client’s interest (as well as theirs) to act honestly to gain the most of the negotiation process.[75]

Third, principled negotiation revolutionises the view that one may have towards negotiation itself. As negotiations are traditionally viewed as an adversarial process where parties come together to bargain on positions (as with the distributive negotiation model), this encouraged concealment of vital information and lack of transparency in some cases as parties do not want to weaken their position by being too open about their position and relevant facts.[76] In contrast, the focus on interests in principled negotiation would change the way negotiations are viewed as it is a process by which parties come together to better understand each other’s interests and create solutions that can better serve their interests which may not even exists prior to the negotiation. This would in the long term cause a paradigm shift from viewing negotiations as an adversarial process to one that is collaborative.[77] Hence, parties are more likely to come in good faith and negotiate in an honest and ethical manner.

It may be argued that distributive negotiation may still have value in some negotiations particularly where there is only one issue in dispute or that parties’ common interests are limited.[78] Furthermore it is conceded even by the creators of principled negotiation that it may not be appropriate for all types of disputes and both models are used in practice in the appropriate circumstances.[79] however parties may still choose to negotiate to the extent that they do have such common interests and may decide on other matters relevant to the substance of the dispute such as process to resolve the dispute or a standard to be used.[80] Hence, even though parties may not resolve all matters using principled negotiation, it would still result in less room for a positional bargain and minimises any room for unethical behaviour.[81] Hence principled negotiation should still be a preferred model for lawyers to default to rather than distributive negotiation to affect changes in behaviour.

Strengthening the administration of justice

Relevantly, a lawyer’s paramount duty is to the court and to the administration of justice.[82] In this context, they must act to promote a quick, cheap and just resolution of disputes[83] and refrain from acting in a way that diminishes public confidence in the administration of justice or bring the legal profession into disrepute. In this context, it is argued that principled negotiation is more effective than distributive negotiation in promoting a just and efficient resolution of disputes whilst maintaining public confidence in the administration of justice and the legal profession as a whole.

i.???????????????Strengthening reliability of the Negotiation Process

As discussed above, distributive negotiation provides an incentive for lawyers to act in a dishonest manner as they seek to maximise gains whilst diminishing the interests of the other side. Apart from potential disciplinary action for the lawyers and further claims against their clients,[84] this may also undermine the public confidence in the negotiation process as the reliability of the negotiation and its outcome is diminished through dishonest and unethical conduct.[85] From an ethical perspective, apart from breaches of a lawyer’s duty of honesty, it also undermines their adherence to the duty not to do anything that would diminish public confidence in the administration of justice[86] and their paramount duty to the administration of justice.[87]

It is argued here that promotion of principled negotiation strengthens the public confidence in the negotiation process by strengthening its reliability. This is done in several ways. First, as principled negotiation hinges on cooperation by both parties to engage in the process, the collaborative nature of this model makes it more likely for each party to commit to the negotiation outcome.[88] Hence, this strengthens the reliability of the negotiation process as parties are less likely to depart from their negotiated agreement.

Second, as principled negotiation reduces the adversarial element in negotiations, parties are less likely to perceive that they may be exploited in the process and make them more willing to participate in the process along with their lawyers.[89] Furthermore, as openness is a key in eliciting facts to understand interests, the less confrontational approach taken by principled negotiation will place negotiation under a different light compared to its rights based counterparts (like litigation and arbitration).[90] As such, public confidence is likely to be improved as it is viewed as a collaborative environment rather than an adversarial one.

Third, as the negotiation process is largely determined and driven by the lawyers, the use of objective criteria to assess options improves the legitimacy of the negotiation outcome.[91] This is because the use of an objective standard both promotes the parties’ interests as parties agree upon its use and also improves the legitimacy of the process, as it is independent of the parties once the standard is set.[92] Therefore, the overall legitimacy of the negotiation process is strengthened.

It may be argued that these benefits may be limited by the fact that lawyers who traditionally operate under an adversarial system may in fact find it difficult to engage fully in the principled negotiation process and may in fact opt for a mixed approach between distributive and principled negotiation model.[93] However, this in fact signals the need to promulgate the use of principled negotiation as the preferred approach as it would at least minimise room for unethical or dishonest conduct in negotiation albeit not completely.[94] Hence, it would still promote a more reliable negotiation process overall.

ii.??????????????Aligning negotiation approach with other dispute resolution policies

The courts and various legal representative bodies[95] have moved away from the preference of rights-based approaches to dispute resolution through a judicial determination and resolution of disputes in the courts to encouraging parties to use alternative dispute resolution (ADR) methods to resolve their disputes.[96] At the heart of these policies, is the desire for parties to be able to resolve their conflicts in a cheap, quick and just manner without overburdening the courts.[97] There is partially due to a shift in clients’ preference for dispute resolution practitioners to create ‘win-win’ solutions through a collaborative approach rather than an adversarial process.[98] Here, it is argued that principled negotiation is more effective at giving effect to a just, quick and cheap resolution of disputes whilst being able to create win-win solutions.

Unlike a distributive bargain where negotiations take place as a series of trade-offs and compromises to parties’ positions, principled negotiation focuses on maximising interests.[99] Hence, the principled negotiation approach is inherently more effective in creating win-win solutions as this is its emphasis dispute resolution. Furthermore, this may also in many instances reduces the need to for litigation and thereby reducing the costs and time required to resolve the dispute.[100] Furthermore parties who successfully used the principled negotiation to resolve their dispute may additionally benefit from the intention to ‘enlarge the pie’ and an improved relationship.[101] As such, this demonstrates that principled negotiation is not only more effective in promoting the underlying highlighted here but also strengthens public confidence in the dispute resolution process[102] and towards the administration of justice generally.[103] This also reinforces a lawyer’s duty to act in their clients best interests without sacrificing ethics.

Whilst it may still be argued that some disputes are more appropriately dealt with using a rights-based approach (like litigation or arbitration),[104] the fact that some disputes are capable of being resolved through principled negotiation means that this approach would free up resources for the appropriate cases to be dealt with there. Hence, the promotion of principled negotiation would strengthen the administration of justice as a whole.

Implications on Lawyers Ethical Duties

This part ultimately highlights that the promotion of principled negotiation as a preferred model to be used in negotiation is effective at creating normative change towards a more ethical negotiation environment in general. Relevantly, it also strengthens lawyers’ compliance with their paramount duty to the administration of justice and discouraging them from engaging in acts that undermines the public confidence in the dispute resolution process.

CONCLUSION

In conclusion, the arguments in this essay demonstrates that adopting a principled negotiation is more effective in encouraging lawyers to comply with their ethical obligations to their clients, opponents and the public generally compared to distributive negotiation. Further, it is also a useful model to be adopted as it promotes ethical behaviour in negotiations in the long run by promoting normative changes in the practice of dispute resolution particularly in lawyer’s attitudes in approaching negotiation. This should be an encouragement to both law schools and legal regulatory bodies to educate and encourage the use of principled negotiation as a preferred model over distributive negotiation to promote a more ethical dispute resolution scene in Australia.

ENDNOTES

[1] Mark Rankin, ‘Legal ethics in the negotiation environment: A synopsis” (2016) 18 Flinders Law Journal 77, 82; Michael H Rubin, ‘The Ethics of Negotiation: Are There Any?’ (1996) 56 Louisiana Law Review 447, 472-6; Wolski, ‘The Truth about Honesty and Candour in Mediation: What the Tribunal Left Unsaid in Mullins’ Case’ (2012) 36 Melbourne University Law Review 706, 708, 739.

[2] Mark Rankin, ‘Legal ethics in the negotiation environment: A synopsis” (2016) 18 Flinders Law Journal 77, 84.

[3] Roger Fisher and William Ury Getting to Yes (RF Books, 2nd Ed, 1981).

[4] R4.1.1, Australian Solicitor Conduct Rules 2015 (NSW).

[5] Ibid, r4.1.3.

[6] Ibid, r3.

[7] Ibid, r22.1.

[8] Ibid, r22.2.

[9] Law Society of NSW v Foreman (1994) 34 NSWLR 408, 412; Legal Services Commissioner v Mullins [2006] LPT 012. Legal Practitioners Complaints Committee v Fleming [2006] WASAT 352.

[10] Ibid.

[11] Donna Cooper ‘the “New Advocacy” and the emergence of lawyer representatives in ADR’ (2013) 24 Alternative Dispute Resolution Journal 178, 182; Legal Services Commissioner v Baker [2005] LPT 002 at [22]-[24]

[12] Michelle Wills, ‘The Use of Deception in Negotiations: Is it “strategic misrepresentation” or is it a lie?’ (2000) 11 Australasian Dispute Resolution Journal 220, 222; n2, 84.

[13] Michael Wills ‘The use of Deception in Negotiations: is it “strategic misrepresentation” or is it a lie” 11 Australian Dispute Resolution Journal 220, 221.

[14] n12; n2, 85 – 88.?

[15] n3, 76 – 96;

[16] Ibid, 30.

[17] Gary Goodpaster A Primer on Competitive Bargaining in Carrie J Menkel-Meadow, Lela Porter Love, Andrea Kupfer Schneider, Jean R Sternlight (eds) Dispute Resolution: Beyond the Adversarial Model (Aspen Publishers, New York, 2005) at 83-84 cited in Tessa McKeown ‘Fisher and Ury’s Getting to Yes: A critique: The shortcomings of the Principled Bargaining Mode;’ (2013) Social Science Research Network, 1, 4.

[18] Ibid, 7 – 8; Katja Funken “The Pros and Cons of Getting To Yes: Shortcomings and Limitations of Principled Bargaining in Negotiation and Mediation” (LLM Thesis Dispute Management Law, University of Queensland, 2001), 21.

[19] John Woodward, ‘Tipping the scales – to what extent does the presence of power imbalances detract from the efficacy of principled negotiation?’ (2015) 26 Australasian Dispute Resolution Journal, 86, 87 – 88.

[20] n4, r4.1.1.

[21] Ibid, r4.1.3.

[22] n18, 7; Kevin Avruch, ‘Toward An Expanded “Canon” of Negotiation Theory: Identity, Ideological, and Values-Based Conflict and the Need for a New Heuristic’ (2005- 2006) 89 Marquette Law Review 567, 573-575 cited in Bobette Wolski ‘ The “new” limitations of Fisher and Ury’s Model of Interest-based negotiation: not necessarily the ethical alternative” (2012) 7 JCU Law Review, 127, 140.

[23] Judith O’Hare ‘Negotiating with Gender’ (1997) 8 Australasian Dispute Resolution Journal 218, 224.

[24] n3, 38.

[25] Ibid, 46 – 75; Carrie J Menkel-Meadow, Lela Porter Love, Andrea Kupfer Schneider, Jean R Sternlight (eds) Dispute Resolution: Beyond the Adversarial Model (Aspen Publishers, New York, 2005) at 204 cited in Tessa McKeown ‘Fisher and Ury’s Getting to Yes: A critique: The shortcomings of the Principled Bargaining Mode;’ (2013) Social Science Research Network, 1, 10.

[26] Ibid.

[27] Ibid.

[28] Ibid, 51.

[29] Ibid.

[30] n11, 185.

[31] Jay Folberg and Alison Taylor, Mediation: A Comprehensive Guide to Resolving Conflicts Without Giving In (Jossey-Bass, 1988) 7 cited in Bobette Wolski ‘ The “new” limitations of Fisher and Ury’s Model of Interest-based negotiation: not necessarily the ethical alternative” (2012) 7 JCU Law Review, 127, 131; Bruce Patton, “Negotiation”, Vantage Partners (2005), 7 <https://info.vantagepartners.com/insights/negotiation>.

[32] n12.

[33] Gordon Meggs ‘Issues in Divorce Mediation: Methodology and Ethics’?(1993) 4 Australasian Dispute Resolution Journal 198.

[34] in Tessa McKeown ‘Fisher and Ury’s Getting to Yes: A critique: The shortcomings of the Principled Bargaining Mode;’ (2013) Social Science Research Network, 1, 7.

[35] Jim Sebenius ‘BATNAs in Negotiation: Common Errors and Three Kinds of “No”’ (working paper 17-055, Harvard Law School, January 2017).?

[36] Ibid; Gregory Marsden and George Sidel ‘ The duty to negotiate in good faith: Are BATNA Strategies Legal?’ (2017) Berkeley Business Law Journal, 127, 128.

[37] N12, 52.

[38] Ibid; Rodney Harris ‘Contrasting Principled Negotiation with the Adversarial Model” (1990) 20 Wellington Law Review, 91, 93.

[39] Ibid, n12, 222; Warren Pengilley, ‘“But you Can’t do That Any More!” – The effect of section 52 on common negotiating techniques’ (1993) 1 Trade Practices Law Journal 113, 119

[40] Bobette Wolski ‘ The “new” limitations of Fisher and Ury’s Model of Interest-based negotiation: not necessarily the ethical alternative” (2012) 7 JCU Law Review, 127, 144 – 147.

[41] Ibid.

[42] Raymond A Friedman and Debra L Shapiro, ‘Deception and Mutual Gains Bargaining: Are They Mutually Exclusive?’ (1995) 11 Negotiation Journal 243, 245.

[43] Ibid; David Biggs ‘Ethical Settlement negotiation’ < https://www.austlii.edu.au/au/journals/NSWBarAssocNews/2009/21.pdf >.

[44] n1, 111; Robert Angyall ‘The Ethical Limits of Advocacy in Mediation’ (Outline of Paper for Bar Practice Course) <https://nswbar.asn.au/docs/professional/prof_dev/BPC/course_files/The_Ethical_Limits_Of_Advocacy_In_Mediation_updated.pdf >.

[45] n19, 87; n18, 12.

[46] Ibid; Russell Korobkin, ‘Behavioral Ethics, Deception, and Legal Negotiation’ (2020) 20 Nevada Law Journal 1209, 1215; Thomas Carson, Richard Wokutch, Kent Murrmann ‘Bluffing in Labour negotiations: Legal and Ethical Issues” Journal of Business Ethics, 13, 16 – 17.

[47] n38; John Zeleznikow and Emilia Bellucci ‘Legal fairness in ADR processes – implications for research and teaching’ (2012) 23 Australasian Dispute Resolution Journal, 265, 271 - 272.

[48] n19.

[49] Ibid; n47; n36.

[50] N35, 2; Pon Staff ‘BATNA: How to leverage your best alternative away from the table to reach an agreement at the bargaining table’ (website, 8 September 2020) < https://www.pon.harvard.edu/daily/batna/batna-the-danger-of-take-it-or-leave-it/ >.

[51] Ibid.

[52] n3, 150.

[53] N19.

[54] n38; Thomas Carson, Richard Wokutch, Kent Murrmann ‘Bluffing in Labour negotiations: Legal and Ethical Issues” Journal of Business Ethics, 13, 14.

[55] n19.

[56] N35,7, n36, 137.

[57] Ibid.

[58] n25.

[59] N3, 128 – 142.

[60] Ibid; Tessa McKeown ‘Fisher and Ury’s Getting to Yes: A critique: The shortcomings of the Principled Bargaining Mode;’ (2013) Social Science Research Network, 1, 6 – 7.

[61] Ibid.

[62] John Wade ‘The last gap in negotiations – Why is it important? How can it be crossed?’ (1995) 6 Australasian Dispute Resolution Journal, 94, 96; Ken Adams “issues and challenges in settling class actions’ (2013) 87 Australian Law Journal 537, 540; Regent Holdings Pty Ltd v Victoria [2012] VSCA 221, n3, 84; n17.

[63] Ken Adams “issues and challenges in settling class actions’ (2013) 87 Australian Law Journal 537, 540.

[64] n3, 84.

[65] RJ Condlin “Bargaining in the Dark: The Normative Incoherence of Lawyer Dispute Bargaining Role” (1992) 51 Maryland Law Review 26, 27; Alan C Tidwell Conflict Resolved? A Critical Assessment of Conflict Resolution (Continuum, New York, 2004) at 26 cited in Tessa McKeown ‘Fisher and Ury’s Getting to Yes: A critique: The shortcomings of the Principled Bargaining Mode;’ (2013) Social Science Research Network, 9

[66] n3, 132 -?135.

[67] Ibid, 136 – 139.

[68] Henry Kha ‘Evaluating collaborative law in the Australian context’ (2015) 26 Australasian Dispute Resolution Journal 178, 178; Julia McFarlane, ‘Experiences of Collaborative Law: Preliminary Results from The Collaborative Lawyering Research Project’ (2004) Journal of Dispute Resolution 179, 201.

[69] n42.

[70] John Zeleznikow and Emilia Bellucci ‘Legal Fairness in ADR Processes – implications for research and teaching’ (2012) 23 Australasian Dispute Resolution Journal ,265.

[71] N68; n38.

[72] Julia McFarlane, ‘Experiences of Collaborative Law: Preliminary Results from The Collaborative Lawyering Research Project’ (2004) Journal of Dispute Resolution 179, 194 – 201; n11, 180 -?181.

[73] Ibid, 201 – 205.

[74] N36;?Tony Bogdanoski ‘Medical negligence dispute resolution: A role for facilitative mediation and principled negotiation?’ ?(2009) 20 Australasian Dispute Resolution Journal 77, 81.

[75] Ibid.

[76] n42; n43.

[77] N74; Robert J Condlin, ‘“Every Day and in Every Way We Are All Becoming Meta and Meta” or How Communitarian Bargaining Theory Conquered the World (of Bargaining Theory)’ (2007-2008) 23 Ohio State Journal on Dispute Resolution 231 cited in Bobette Wolski ‘ The “new” limitations of Fisher and Ury’s Model of Interest-based negotiation: not necessarily the ethical alternative” (2012) 7 JCU Law Review, 127, 145.

[78] Jacqueline M Nolan-Haley Alternative Dispute Resolution in a Nutshell (Thomson West, United States of America, 2008) at 27 cited in Tessa McKeown ‘Fisher and Ury’s Getting to Yes: A critique: The shortcomings of the Principled Bargaining Mode;’ (2013) Social Science Research Network, 1,7.

[79] Roger Fisher, “Comment” (1984) 34 Journal of Legal Education 120 at 123.

[80] n42.

[81] Ibid.

[82] n4, r3.

[83] Civil Procedure Act 2005 (NSW), s56; Bobette Wolski ‘Ethical Duties Owed by Lawyer Mediators: Suggestions for Improving the NMAS Practice Standards’ (2017) 26 Journal of Judicial Administration 184, 187; 190.

[84] n9.

[85] n83 (Wolksi), 195.

[86] n4, r5.1.1.

[87] Ibid, r3.

[88] Gordon Meggs ‘issues in divorce mediation: Methodology and Ethics” (1993) 4 Australasian Dispute Resolution Journal 198, 205; n63.

[89] n54.

[90] n12, 225.

[91] n38 (Harris), 100 – 101.

[92] Ibid.

[93] n72.

[94] n89.

[95] Law Council of Australia, Model Rules of Professional Conduct and Practice (March 2002), r 12.3; Law Council of Australia, Guidelines for Lawyers in Mediations (2007),<https://www.nswbar.asn.au/docs/professional/adr/documents/LAWCOUNCILGUIDELINESFORLAWYERSINMEDIATIONS.pdf >; Kathy Douglas ‘The importance of understanding different generations of ADR practice for legal education’ (2012) 23 Australasian Dispute Resolution Journal 157, 161.

[96] n11, 180.

[97] N83, 185 – 187; n95 (Douglas), 180.

[98] Ibid; n11.

[99] N38 (Harris), 94.

[100] Douglas S, “Humanising legal education: Lessons from ADR” (2012) 23 Australasian Dispute Resolution Journal 216 at 221-222 cited in Donna Cooper ‘the “New Advocacy” and the emergence of lawyer representatives in ADR’ (2013) 24 Alternative Dispute Resolution Journal 178, 186.

[101] N16.

[102] N87; n9, r4.1.3.

[103] n9, r3.

[104] N17 (McKeown), 8.