Negotiation and Settlement Advocacy

Negotiation and Settlement Advocacy

Critique 1

Private Settlement as alternative adjudication: A rationale for negotiation ethics

A. Gordon’s views and conclusion

In his article Gordon concludes that the regulation for the behaviour of lawyers in the negotiation context is not sufficient and makes certain suggestions for further regulation on the matter. Although Gordon’s thoughts on candour and truthfulness in negotiation are somewhat sympathetic, I disagree with his attempt to make further rules for settlement negotiation ethics. My concern with Gordon’s suggestions are based on two main considerations: For one, I question the actual need for making further legislative rules for lawyers conducting negotiation (Part B), and secondly, I think that there are problems connected with making specific rules of ethics for negotiation (part C). In part D, I make a conclusion on my two considerations in regards to Gordon’s conclusion.

B. The actual need for making legislative rules for lawyers conducting negotiation

It is true that negotiation is a very essential part of the judicial system and that it needs some regulation. It is however, not a part of the litigation system. The process of a negotiation and the outcome of a negotiation process and the possibility to challenge the outcome of a negotiation are very different to those of a litigation process and the rules are thus and should be different.

A lawyer is a counsellor for a client and has a job to his best for that client. The lawyer however, is not a judge. In our legal system, it is up to the judge or a jury to decide what is ultimately right or wrong. It is up to the judge/the jury to combine the facts of the case with the right legal interpretation of the rules applying to those facts and to then decide on what should or what should not be the legal consequence(s) in that very case.  

A lawyer should thus do his very best to make sure that his client gets the best possible outcome of either a litigation and a negotiation process using all his legal skills as well as other psychological tactics or “tricks” that the lawyer could possibly come up with – as long as these are within the limits of the law. The limits for the lawyer are – as stated in Gordon’s article – that the lawyer shall not conceal or knowingly fail to disclose that which he is required by law to reveal, nor should the lawyer counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent. In my opinion, these rules and the other rules mentioned in the article (e.g. on page 505) are appropriate and sufficient.