When people are the means: Negotiating with respect

INTRODUCTION

The topic of negotiation ethics is by no means new. Negotiation has long been a hallmark of social development, and from ancient times writers have been concerned with how negotiation should be practiced. Were the Biblical characters Rebecca and Jacob wrong to deceive Isaac, by masquerading and outright lying, so as to ensure that Isaac's blessing passed to Jacob rather than Esau?1 If a merchant porting grain by ship from Alexandria to famine-stricken Rhodes overtakes at sea several other vessels also porting grain to Rhodes, should he, upon arriving in Rhodes, reveal the imminent arrival of those other vessels, or should he bargain without revealing that information?2 To this day the puzzles of deception and disclosure have remained at the heart of most discussions of negotiation ethics within the American legal community, with occasional attention paid to the topic of fairness.3 Yet there is a fundamental domain within negotiation ethics that relates to, but is distinct from, these topics that has been largely unaddressed. I call this the ethics of orientation. The purpose of this Article is to explore that domain.

To introduce this domain, consider the following question: What distinguishes negotiation from interpersonal interactions generally? A basic difference is that in negotiation, each party attempts to get the other party to do something, or at least explores that possibility. Put differently, in negotiation the other party is a potential means towards one's ends. If two people are chatting about the weather, rarely will their conversation end with an exchange of promises. If they are negotiating the sale of a car, it very well may.

This basic difference between negotiation and most social interactions points to a core question, or tension, lying within the domain of orientation ethics. Usually we think of other people as, well, people. Yet negotiation may pull us towards seeing others as mere instruments for achieving our purposes. To borrow from the language of Martin Buber, in negotiation we are drawn towards reducing the other person from a "Thou" to an "It."4 Negotiation thus presents an apparent ethical tension that I call the object-subject tension: when negotiating, how is one to reconcile the impulse to treat the other person as a mere means towards one's ends with general ethical requirements for treating people? In response, I argue that in negotiation one should see the other party both as a means towards one's ends and as a person deserving respect. More specifically, the act of negotiation does not relieve one of the moral duty to respect others. This duty of respect implicates both the traditional negotiation ethics topics of deception, disclosure and fairness and also topics such as manipulation, coercion, listening, and autonomy.

Part I, Direct Negotiations, begins with the case of direct principal-to-principal negotiations. I introduce the concept of "stance", i.e., one's internal psychological orientation towards the other party when negotiating, and argue that stance is relevant to negotiation ethics. More specifically, in negotiation one should assume a respectful stance towards the other person, for that other person is a being with fundamental dignity who merits respect. I conceive of this duty of respecting the other person primarily in internal terms, that is, of seeing the other person not merely as an instrument or object but also as a person. However, this duty also has both negative implications (e.g., refraining from deception, coercion, threats, incivility, and psychological assaults) and positive implications (e.g., treating others fairly, listening to them, and respecting their autonomy) for one's actions. I explore the nature of respect (e.g., whether respect is primarily a matter of action or of attitude) and conceptualize respect, at root, as a chosen orientation whereby one tries to see, and hence treat, the other person as a person with fundamental dignity. I also discuss the effect that respecting others has on one's own self-definition, both as an individual and as a member of a community.

Part II, Critiques and Responses, raises and then rebuts criticisms of the position articulated in Part I that one is morally obliged to respect others in negotiation. The criticisms are based upon arguments from reciprocity, prior harm, custom, self-protection and free-market economics, viz.: (i) "As the other side hasn't treated me with respect, I'm not obliged to treat them with respect;" (ii) "Given the harm that the other side has done to me, I am not obliged to treat them with respect;" (iii) "That's just how the game of negotiation is played;" (iv) "If I try to treat them with respect, I'll get 'eaten alive,' for they won't be trying to respect me and thus I will be disadvantaged in the negotiation;" and (v) "In negotiation, each side should see the other side solely as a means, because social wealth will be maximized when each person eagerly pursues his/her own self-interest." My basic response to these criticisms is that there is little reason to think that respecting the other party generally will be to one's material disadvantage, but rather the opposite: that respecting the other party will facilitate his or her cooperation which, if it affects the outcome at all, will usually be to one's benefit. Such strategic efficacy does not provide the moral grounding for the duty to respect others in negotiation (viz., because they are persons) but it helps refute some arguments that might be advanced against that duty on their own terms. I also address two deep roots in Western culture that inhibit seeing negotiation counterparts as people deserving of respect: the history of human objectification for material advancement and, relatedly, the over-reliance on materialism, especially comparative materialism, in the human search for psychological and spiritual meaning.

Negotiations are often conducted through agents, and Part III, Lawyers and Other Agents, examines the position of lawyers and other agents who negotiate on behalf of clients. I begin by arguing that the fact of agency does not excuse the agent from the moral duty to respect the other party. I then consider the specific case of lawyers, who are not only agents but also members of a distinct profession regulated by codes of professional ethics. For example, if it is wrong to manipulate the other party in negotiation, how is a lawyer to reconcile such an external duty of non-manipulation towards the other party with what is commonly called the (internal) duty of zealous advocacy that she owes her client? Here, I argue that under existing codes lawyers are permitted, but not required, to view the other party to the negotiation as a person deserving respect rather than as a mere object. However, in the rare case where the lawyer believes that this stance may harm her client's interests, she should discuss this in advance with her client. I also briefly discuss revising professional ethics codes to include a duty to respect the other party in negotiation. Part IV, Promoting Orientation Ethics, addresses two other ways of promoting orientation ethics, namely via reputational effects and education.

Some may see questions of negotiation ethics as esoteric. They are not. As deal-making negotiation is indispensable to commerce, and as dispute-resolving negotiation is necessary for social peace, negotiation is a basic process of social ordering. Far more legal disputes are resolved through negotiation than through adjudication. Further, unlike litigation, where an external judge can ultimately enforce rules, negotiations typically occur in private settings that cannot be readily monitored or controlled externally, heightening the need for ethical sensitivity.

If the critical test of a society's protection of free speech is how it responds to repugnant speech,6 then a critical test of a person's character is how she negotiates, for virtually all negotiations involve a distributive element. No matter how much negotiators can "expand the pie" through value-creating ideas, slices must still be cut. Roughly two millennia ago, the Jewish sage Hillel asked, "If I am not for myself, who will be for me? If I am for myself alone, what am I? And if not now, when?"7 Though not posed specifically in the context of negotiation, his questions reflect the relevance of negotiation ethics to one's self-definition both then and now. How we see those with whom we negotiate - whether as mere objects or as people - is critical to how we define ourselves. This is especially true for lawyers who negotiate day in and day out. If we neglect these matters, we do so at our moral, and hence psychological, peril.

I. DIRECT NEGOTIATIONS

A. STANCE

Two years after we were married, my wife and I began shopping for our first house. I had been offered a teaching position at the University of Florida, and, before accepting, we visited Gainesville, in part to explore the real estate market. After years of renting, the prospect of buying a house was both exciting and daunting. The law school's dean had put us in contact with a local realtor named "Bev." We made plans to meet at her office one Sunday morning and spend the day house hunting.

When we arrived at her office, Bev was gracious and friendly. Our senior by some twenty years, she had also moved to Gainesville from the north many years ago. We had spoken with her earlier about our tastes in a home, and at ten o'clock we all left in her car to see some houses. By one o'clock, we were hungry. Bev drove us to a moderately-priced restaurant. We each ordered, and at the end of the meal, a bill of roughly twenty dollars arrived. My wife and I offered to divide the bill with Bev according to what we had ordered. A conversation along the following lines then ensued.

"Oh no," said Bev, "I'll pay for it."

"Why don't you pay for your part, and we'll pay for ours?" I replied.

"No," said Bev, "Let me pay the whole check."

"You don't have to pay for us," I said. "We should at least pay for ourselves."

"Don't be silly," said Bev. "You're new in town. Once you move into your new

house, you can have my husband and me over for dinner."

"Okay, then," I said.

What was going on? Was Bev simply demonstrating Southern hospitality by insisting on paying for our lunch, or did she want to make us feel beholden and increase the chances that we would stay with her as our realtor?8 As I consented to let Bev pay, both possibilities ran through my mind, as did the thought that if Bev was insisting on paying in order to make us feel indebted, then we should not feel indebted by her act.

When assessing this negotiation, it is useful to look at the concept of stance. By stance, I mean a person's internal psychological orientation towards something or someone, typically the other party. While one could define stance in other terms, such as one's external behavior (e.g., what stance did the Senator take on the abortion vote?), I will use stance to refer to a person's inner state. Framed in this language, in our negotiation over who was going to pay for lunch, I was concerned about Bev's stance. Was Bev being gracious or manipulative (or both)? At the time, either inference seemed plausible.9

Before addressing the ethical significance of stance in negotiation, several descriptive observations are in order.

A person's stance can profoundly influence a negotiation. Sometimes this is obvious. Entering a negotiation with the view that the other party is one's partner in problem solving rather than an adversary can help produce mutually beneficial results. Yet frequently the influence of stance is quite subtle but still highly significant. Often how one acts is just as important, if not more important, than what one says. Was he really listening to me or was he just going through the motions? Was he really sorry, or just pretending to be? As most people cannot fully mask their motivations, even when a person tries to hide it, his stance will often influence the negotiation.10 From an analytical perspective, the specific statements and "moves" people make in negotiations may often be arbitrary or epiphenomenal, and the stance(s) they take ultimately causal.

People may be either unaware or aware of the stances they take in negotiations, that is, one's stance can be either subconscious or conscious. In reflecting on the above events, I now believe that my stance towards Bev was defensiveness. At the time I was unaware of this. For this reason, I use the term "stance" rather than "intent," as "intent" usually connotes conscious awareness.11 Intent also reflects a sense of purposiveness that stance need not.

While this Article focuses on one's stance towards one's negotiation counterpart, the object of one's orientation need not be one's negotiation counterpart. Does one see one's child as a blessing or as a burden? Does the attorney see the law as a way to make money or as a way to bring about a more just society? As such questions reflect, orientation ethics are of broad ethical relevance.12

A person's stance can be multifaceted. The parent may see the child both as a blessing and as a burden, and the attorney may see legal practice both as a way to bring about a more just world and as a way to earn a living. We often comprehend the world in binary terms: it's one or the other, but not both. Occam's razor notwithstanding, we should be wary of reductionism that inaccurately simplifies the complex.

As stance can be multifaceted, and as people can either be aware or unaware of the stances they assume, sometimes parties are conscious of certain aspects of their stance but unconscious of other aspects. For example, if one asked Bev why she offered to pay for our meal, she may well have attributed it sincerely to a blend of hospitality, courtesy and graciousness. But if one asks why Bev really offered to pay for our meal, perhaps her driving subconscious motivation was the less benign one of seeking to make us feel indebted. Like a ship steered by a rudder but powered by a propeller, often our minds unreflectingly garb our hostile motivations in noble clothes, for we prefer to see ourselves as noble, rather than ignoble.13

Consider some examples from the political realm. Does the religious group support legislation forbidding homosexual marriage because the Bible calls male homosexuality "an abomination"14 or does the group, which does not call for legislation to enact other Biblical prohibitions, use that Biblical verse as the garment for clothing its underlying homophobia? When a majority of citizens, most of whom are white, passes legislation prohibiting state-sponsored affirmative action programs, thereby decreasing minority enrollment in universities, which is the real motivation, promoting a race-blind society or maintaining white power?15 Of what relevance is political history in making that assessment? I do not mean to suggest that all those opposed to legalizing homosexual marriage or affirmative action have at root homophobic or racist motives. No doubt many such opponents are at root motivated by the respectable goals of effectuating a Biblically-guided society and a race-blind society. Nor do I mean to suggest that I have some magical way of perfectly discerning a person's or an organization's true motives.16 Rather the point is that a person's perception of his or her own motivations can be quite different from the reality of what his or her underlying motivations actually are.17 With these descriptive observations in mind, let me now turn to the normative realm of ethics.

The first point to observe is that, in assessing negotiation ethics, the internal variable of stance is relevant. In our lunch, if Bev insisted on paying so as to make my wife and me feel obligated to continue with her as our realtor, most would judge her insistence with contempt. In contrast, if her intent had been to welcome us warmly to a new community, most would call that very same act commendable. Bev's behavior alone is an insufficient informational basis for ethical judgment. Our ethical judgement depends not only upon Bev's actions, but also upon our assessment of her intent.

Consider an example common within negotiation - active listening. Active listening is a technique whereby the listener reflects to the speaker that he or she has grasped what the speaker says, either by paraphrasing the speaker's comments ("If I understand you correctly, what you're saying is...") or otherwise demonstrating an understanding of the speaker's comments ("If what you say is right, then it must follow that. . ."). This technique is used in many disciplines,18 and is commonly taught in negotiation courses. Yet little attention is typically paid to the ethics of active listening.19 If I am a psychologist with the goal of making a patient feel heard, then using the technique of active listening is morally sound, for the patient implicitly agrees with that goal. The same is true if I am a lawyer trying to learn about my client's experiences. However, if in negotiation I use such techniques simply for my strategic advantage, so that having "felt heard" you will become less adversarial and I will be able to push the negotiation to my advantage, then the propriety of using active listening becomes suspect. Parallel concerns arise in the organizational setting. It is laudable for an organization to have an ombudsperson or a customer service department that actually helps to solve problems. It is problematic for an organization to use such mechanisms simply to make workers and customers "feel heard" without ever addressing underlying issues.

B. STANCE TOWARDS OTHERS

What orientation should one take towards the other party in a negotiation?

A hard-nosed "realist" might claim that, in a negotiation, the other party is a possible means to one's ends, an instrument towards one's goals. This is undoubtedly true and relevant. However, it is only a partial picture. One's stance towards the other party in negotiation should recognize more than just that person's instrumentality.20

Sometimes one's relationship with the other party affects what orientation one should take when negotiating.21 If a parent and child are negotiating over the child's bedtime, one would hope that they see themselves not as adversaries but rather as members of a loving family. A good parent should ask both "What will work for me?" and "What will be best for my child?" Athletes in team sports often face similar situations. "If I pass the ball, my individual scoring 'stats' may be lower, but it might help the team to win. What should I do?" Implicitly, the issue faced is whether the athlete sees her teammates as rivals or as partners, or as a combination of both.

Even if one does not have a prior relationship with the other party, the other party is still a human being, and it is morally relevant to see the other party as such. Skeptics might argue, "What difference does it make what orientation I take towards the other party? That's just a matter of my internal beliefs." Yet beliefs affect actions. Is it wrong to lie to another? Then prima facie it should be wrong to lie to another in a negotiation. Is it wrong to treat a person unfairly? Then prima facie it should be wrong to treat a person unfairly in a negotiation.22 Is it wrong to intimidate another person? Then prima facie it should be wrong to intimidate that other person in negotiation. The same applies to deception, coercion, threats, incivility, psychological assaults, manipulation, and so on. If it is wrong to treat people in these ways, then, unless compelling justification is given (e.g., few would say that it was wrong for the Allies to deceive the Nazis about where the Normandy invasion would occur23), it remains wrong to do so in negotiation. A fundamental moral challenge in negotiation is seeing the fundamental dignity of people despite their instrumentality.

Note the linkage here between orientation ethics and more traditional topics within negotiation ethics, such as lying, failing to disclose material information, or substantive unfairness in bargaining outcomes. Seeing the other party as a person with fundamental dignity provides a moral basis for refraining from acts such as treating him unfairly, deceiving him, and so on. Derived from the concept of fundamental human dignity, a very high level of care should attach to our interactions with one another. It is no excuse for a hard-nosed person to say, "I treat people as objects, and that is how I expect them to treat me." There may well be other possible moral bases for refraining from such immoral acts (e.g., religious beliefs that God will punish you if you lie), but seeing the other party as a person deserving of respect provides a solid one.24

Some may ask why people deserve respect in the first place. There are many responses to such questions. Those within Biblically-derived religious traditions may say that human beings, created in the Divine Image, are sacred entities who merit respect.25 Philosophers may give accounts of why failing to respect people should be rejected. Kantians might conclude that a rational being could not will such steps to be universal laws, for she herself would want to be treated as an end in herself whose will should be respected and not as a means.26 Utilitarians might argue that failing to respect others destroys social capital.27 Communitarians might suggest that respect among persons is essential for maintaining our collective identity.28 Feminists might argue that our relationships with one another are fundamental to our existence, and that those relationships should be grounded in respect.29 I do not expect that all readers will agree with each of these positions. However, I suspect most readers accept some basis for the fundamental dignity of each person.30 As the psychologist Jean Piaget wrote, "[A]uthors of the most diverse inspirations find themselves in agreement on one point ... the sentiment most characteristic of moral life is the feeling of respect."31 By respecting others, I mean adopting an orientation that reflects this fundamental dignity.

Consider an example from the medical setting. My father-in-law is a primary care physician who also serves as the medical director of a nursing home. As part of staff education, several times a year he interviews one of the home's residents in front of the entire staff. In particular, he asks if the resident would be willing to share parts of her life history, and not just medical history, with the staff. The answers, he tells me, are often quite incredible:

Recently, I interviewed a delightful 88-year-old woman. Mrs. J. was a very upbeat happy lady who was always trying to help other residents of the nursing home.

I started by asking Mrs. J. where she was born. She answered that she was born in a nearby town, the fourth of five children. When she was a year old and her oldest sister was 6, her mother walked away with a tradesman. The children were left at home. When her father returned home that evening, he read the note his wife had left, locked the door and returned to his birthplace in Canada. When the children were found a week later, the 3-month-old baby had died. The children were then separated and placed in foster homes. Mrs. J. spent the next 17 years in a home with a physically abusive stepmother.

When she was 18, Mrs. J. ran away. Taken in by a minister in her church, she soon met a man at a church function and married. With the help of her church and her husband, she lived a long and happy life marred only by a year-long episode of depression, 2 bouts of cancer and the deaths of her husband and only child within a few months of each other. After more than a decade of living alone as a widow, she came to live at the nursing home when spinal stenosis led to paraplegia and an inability to walk.

The staff and I were stunned to hear this grim story from a woman who seemed so happy, helpful and outgoing. We talked about the recent work on resilience which sought to understand how some people can flourish in spite of a disastrous childhood.32

Why did my father-in-law institute this practice? "My goal," he writes, "is to show the staff that residents had rich and varied lives prior to their admission to the nursing home."33 In other words, he wanted the nursing home employees, including himself, to see the residents as people and not merely as combinations of medical ailments.

Some may ask, precisely how far does this duty to respect the other party in negotiation extend? "If party A is under the misimpression, which B did not create, that B already has an offer in his pocket, must B rectify A's misimpression?" "Is it acceptable to politely make a 'low-ball' offer and then stubbornly defend it for a period, hoping that the other party will 'cave?'" "Is stalling in a negotiation acceptable?" "How do we know the difference between what some would call 'unethical, manipulative behavior' and what others would call 'legitimate, strategic behavior?'"

Accepting that there is a duty to respect the other party does not settle important and interesting questions concerning the limits to that duty. While I will offer some observations on this duty of respecting the other party, I will not attempt to delineate the precise limits of this duty here. This arises in part from inherent complexities of the subject. As I will argue below, the respecter's mental state is critical for determining whether a seemingly respectful act is a genuinely respectful act. Thus, specifying the duty to respect others in negotiation by delineating a particular set of acts is itself problematic, for the critical issue is whether such acts are done with a proper mental state. Further, as we discuss the duty of respect, there may well be some vagueness as to the boundary issues of how far this duty reaches, and different people will undoubtedly see different limits. Yet the fact that its boundaries can be disputed does not mean that the duty does not exist. As Amartya Sen expressed, "[B]oundary questions are sometimes taken to be more important than they are. Intellectual interest in these issues may distract attention from the fact the imprecision of boundaries can still leave vast regions without ambiguity. It is indeed possible to say a good deal about China and India without asserting that there are no ambiguities as to where the boundary between the two countries lies."34 The same applies to the duty to respect others in negotiation. Even before we reach the boundary disputes, much can be said about the intramarginal domain.

C. RESPECT

Respect is commonly understood in two ways. One focuses on a person's internal feelings, and the other upon his external actions. The Oxford English Dictionary defines respect, inter alia, both as, "[d]eferential regard or esteem felt .. towards a person or thing" and as, "[d]eferential or courteous attentions . . . politenesses, courtesies."35 Note that the former type of respect, which is rooted in one's internal feelings, can have much broader external manifestations than the matters of social etiquette covered by the latter definition.36 A child who respects her parents may not only treat them with courtesy but may also try to emulate their behavior.

Rather than labeling "[d]eferential or courteous attentions ... politenesses, courtesies" or other acts that express respect as respect, it is more helpful to call such acts signs of respect and initially conceive of respect primarily in internal terms, for now, say as a feeling.38 (Later I will argue that respect is best understood as a chosen orientation; however, it is easiest to begin by conceiving of respect as a feeling.) No doubt some will dislike this terminology and prefer to focus on external demonstrations.39 They might argue, "What really matters is how you treat others - whether you show respect. Since the other party experiences one's actions and not one's feelings, our analysis of respect should focus on actions." While I embrace the idea that how one treats the other party is vital, let me explain why I locate respect for others primarily in internal terms.40

Imagine two baseball players standing erect with their caps removed and their hands over their hearts as the national anthem is played. The first player focuses his eyes keenly on the flag and thinks about how fortunate he is to live in a free country. The second player gazes in the general direction of the flag but rolls his eyes minutely. He ponders whether he will win the league's most valuable player award this year, and, knowing that he needs to project a good public image to win the award, he looks in the flag's general direction. Though their external actions are quite similar when the anthem is played, the first ballplayer possesses much more respect for flag and country than the second ballplayer. The first ballplayer's actions sincerely or genuinely reflect his feelings, while the second ballplayer's actions do not.

As suggested above, subtle differences in action can be deeply indicative of whether an external action is motivated by respect. It is one thing to peer intently at a flag, and another thing to gaze in a flag's general direction.41 At a school with a dress code, it is one thing to wear a tie; it is another to wear it slightly askew. It is one thing to offer someone a greeting; it is another thing to offer someone the same greeting in an ever-so-slightly condescending tone. The line between a respectful and a disrespectful act is often quite thin, and a slight modification can turn the former into the latter. As many rebellious teenagers know, one of the greatest signs of disrespect is to transform a respectful act into a disrespectful one, for that transformed act implicitly carries two statements that join powerfully: "I know how to treat you with respect" and "I choose not to."

The thin line between a respectful and a disrespect act applies not only when a party intends to be disrespectful (as with a rebellious teenager), but also in the more common case where a party feels disrespectful towards another party but does not intend to show it. If one does not feel respectful internally, one's externally-respectful actions often will be negated by the attitude with which one conducts the actions. Small, subconscious cues will give one away.42 Hence, in order to act respectfully, it is often requisite that one possess a respectful attitude.

Consider too the question of whether an external sign of respect is motivated by esteem or by fear. Imagine a courier sent to deliver a message to a ruthless dictator. In her heart, the courier despises the dictator, yet when meeting him she bows low and addresses him as, "Your Majesty." A dictator who puts a premium on maintaining his position may care far more about the external signs of respect than the courier's attitude. However, are we to say that the courier truly respects the dictator? Putting aside for simplicity the possibility that the courier follows such courtesies out of a respect for general social conventions,43 likely the courier bows to the dictator and addresses him as "Your Majesty" out of fear rather than warm regard. The same applies in teaching. Some teachers are treated with external signs of respect because students fear them, while others receive such signs because students revere them. While it is possible to use the word "respect" to describe a negative attitude motivated by fear, as in "respecting a dangerous animal," such heed or care is quite different from high regard or admiration.

Volition is a key ingredient of respect.44 Just as religious crusaders could force external conversions upon the threat of death but not internal conversions of the heart, so too is an authority incapable of creating esteem-based respect through external force. This observation implicates a very important topic: what can an authority, such as the legal system, do to promote respect? If the goal is to promote esteem-based respect, using external force to achieve it appears futile, for esteem cannot be commanded. But what if an authority sought merely to achieve externally-respectful actions rooted in the fear of sanctions?

Even then there are challenges. As respect is found in subtleties, specifying precisely how a party must behave to act respectfully can become self-defeating. Imagine a school principal who, seeking to promote respect for teachers, tells students that their statements to teachers must include "Ma'am" or "Sir" (e.g., "Yes, Ma'am" or "No, Sir") or they will be punished. If the students adhere to that requirement but simultaneously smirk, the respect conveyed by those words is negated.45 An authority seeking to command respectful acts is a bit like a government seeking to collect tax revenue: if the taxpayer's basic orientation is to "game" the system rather than pay a fair level of taxes, collecting taxes becomes a struggle.

A savvy authority might try to command such external acts of respect in broad terms. The principal might declare to students, "Act respectfully towards the teacher or you'll be punished." An employer might instruct employees, "No matter what the customer does, treat the customer politely or you'll lose your job." This implicates a further complexity: the vagueness of the command.46 When principals instruct students or when employers instruct employees, that vagueness may be tolerable, for we give school officials and employers much discretion in how they handle students and employees. However, when punishments must be meted out according to legal standards, such vagueness becomes more problematic.47 If the law were to require that, "Parties within negotiation must act respectfully towards one another," such a requirement would be difficult to enforce. Perhaps a court could punish cases of grossly disrespectful acts (e.g., a vulgar tirade), but that is a very limited set. Sanctioning egregious behaviors falls far short of promoting the maximalist, aspirational goal of truly respecting others. It would be a bit like having a law requiring people to act kindly, with only the ability to punish those who commit murder. Further, such sanctioning could only generate fear-based, rather than esteem-based, actions.

Recognizing that esteem cannot be externally commanded leads to another question: If one's respect cannot be commanded by others, can one even command oneself to respect others in a negotiation?48 This is a critical question, for if the answer is "no," then the picture is grim. If one cannot even command oneself to respect others, regardless of whether respect is an aspirational norm, it may be an unachievable norm. Fortunately, there are sound responses to this question. These responses blur the dichotomized reason-versus-feeling paradigm common in Western thought and lead us away from understanding respect as a feeling (esteem) and towards understanding respect as chosen orientation.

Often we think that people have much control over their actions, but little control over their feelings (e.g., "Of course you were upset when Arnold insulted you, but you didn't have to punch him!"). Under such a view, commanding oneself to respect a person one dislikes would be an impossible task, for if respect is grounded in feeling, how could one force oneself to feel a certain way? Hume once expressed what was later to become the utilitarian view that, "Reason is, and ought to be the slave of the passions, and can never pretend to any other office than to serve and obey them."49 While, in my opinion, such a view neglects many of reason's important roles in the negotiation setting,50 at its core it has a valuable insight: our feelings are not things we can simply command through mental actions.51 Hence, the challenge: even if one wants to respect another, if one does not feel respect for that other person, how is one to do it?

One's first recourse might be to turn to an action-based view of respect and argue that, if one cannot force oneself to possess certain feelings, then one should instead control one's actions by performing respectful actions and refraining from disrespectful ones. Yet such an approach is deficient because the importance of the respectful action is usually not the action itself but the attitude that it signifies. Just as the baseball crowd would be angered if it knew that self-advancement was the real reason for the second ballplayer's outwardly respectful acts, a counterpart who detects that one's outward demonstration of respect is feigned (and there is a good chance that she will) may well be offended. Further, even if one feigns respect with sufficient talent to fool the other party, surely such trickery cannot be morally praiseworthy.52

A more helpful approach is to reject a dichotomized view of the human mind as strictly separated into two distinct parts, reason on the one hand and feelings (or passions, tastes or unconsidered preferences) on the other. While the historical development and entrenchment of this dichotomization are beyond the scope of this Article, reasoning and feelings cannot be tidily separated, but are better seen as in a process of dialogue.53 Suppose a person asks the moral question, "What preferences should I have?," thinks about it, and then decides to work on developing alternative preferences. Such is surely a proper role for reasoning. Rather than seeing reasoning solely in an instrumental role - as the slave of the passions - reasoning and passions can engage in deeper dialogue, working to shape one another.54

To illustrate, imagine a discussion about a social taste, say, for football.55 Suppose we Americans as a society ask, "Why should we have such a strong social taste for football? It is violent, sexist in structure (men play it, and generally women only get to be cheerleaders), requires expensive equipment and often results in severe injuries due to frequent, high-impact collisions.56 Soccer, on the other hand, can fulfill many of the positive purposes of football exercise, entertainment, and building school spirit, etc. - without the drawbacks listed above, and can also help us better integrate into the international community. I concede that soccer too can be played in a violent manner, and that football preserves tradition and may help schools with fund raising, but, especially given the level of serious injuries resulting from football, are these benefits really worth it?" Such reasoning could lead us as a society to decide to cultivate a taste for soccer, say, by teaching children soccer in school.

Conversely, feelings can inform our reasoning. When one learns that African Americans are incarcerated at roughly eight times the rate of white Americans, feelings - whether outrage or compassion - may lead one to think deeply about our criminal justice system and racial stratification within our society generally.57 Such examples illustrate that beliefs and feelings are often intermeshed. A wealthy person who feels indifference when seeing a homeless person may think to himself, "I worked hard for what I have and I have the right to enjoy it, so don't bother me." In contrast, a person who feels compassion when seeing others in such need may think to herself, "We ought to take care of one another, for we are all in this together."

Applying an integrated heart-mind picture allows us to see respect not merely as a feeling (though sometimes one will simply feel such respect), but more deeply as a choice of orientation which in turn will have ramifications for one's actions. Consider the tough case where one dislikes the other party, say, because the other party has treated one unfairly. "Though I may not like him," one might think to oneself, "he is still a person, and I will choose to treat him with respect. I will try to be honest and fair with him, and I will try to refrain from insulting, manipulating or coercing him." The choice of respect is in some ways like the choice of forgiveness: one may still have certain feelings, yet one chooses a broader perspective. As with forgiveness, while the choice to respect can be done out of concern for the other person, it can also be done for self-benefit. Just as an injured person can say, "I don't want to spend the rest of my life hating another person," a negotiator can say, "I don't want to spend the rest of my life using other people." What feelings or motivations one will act upon, and relatedly, what actions one takes, can be matters of choice. In this regard, orientation may occupy something of a middle-ground between feelings and reasons.

Respect, in its deepest form, is a choice of how one wants to see other people. It is the process of striving to recognize the fundamental dignity of the other person and to act in accordance with that orientation. Though we often think of respect as a noun signifying certain actions (e.g., "Did he treat me with respect?") or feelings (e.g., "She felt respect for her parents"), the core of respect is best understood as a verb. As the word itself suggests, re - spect is the process we undertake when we "look again when we challenge ourselves about how we want to see, and thus treat, others.58 This is not to negate the nounal aspects of respect when that process instantiates into particular external signs (e.g., courtesies) or internal feelings (e.g., esteem), but rather to identify its core.59

Two further notes are in order. First, sometimes the height of respect is found in what one does not do. When deeply hostile parties must negotiate an agreement, refraining from a tirade can be a major accomplishment. On a more mundane level, listening to others without interrupting is challenging for many. A correlate to respecting others is refraining from disrespecting them.60

Second, above I discussed the inherent limit to an external authority's ability to induce by force one person to respect another. However, this is quite distinct from the matter of what one can do to induce others to be respectful towards oneself. Many have observed that respecting others is one of the best ways of getting them to respect you. As Sara Lawrence-Lightfoot writes, "Respect generates respect."61 An encounter she had encapsulates this poetically:

[There is] a beautiful little East African girl whom I met in 1976 while traveling in Kenya. She is four years old and speaks four languages with astounding fluency. I meet her, ask her name, and she tells me, "I'm Tolani." I love the name, its lilting, musical sound, and decide immediately that if I ever have a daughter, I will name her Tolani. Much later I discover the name's meaning. In fact, it is a West African name, used by both boys and girls; and it means "one who gives respect and one who is respected." How I love its meaning, its promise of symmetry, as much as its music. You get respect when you give it. When my daughter arrives four years later, I name her Tolani, and hope that she will live both sides of this resonant equation.62

Respect is often symmetric: when we give it, it is usually returned to us.

D. IDENTITY, EQUALITY, VOICE AND AUTONOMY

Though we frequently think of ourselves as atomistic individuals, humans are social creatures and we define ourselves in significant measure through our relationships with others. If in a negotiation I see you as no more than a means, then I have not only defined you as an object, but I have also defined myself as a manipulator. How one negotiates helps define one's identity.

Consider too the issue of equality. If in a negotiation I see you as an equal, then I should also treat you as an equal.63 This does not mean that I must value your interests equally with my own. You may care quite deeply about getting your house repainted, and I may quite properly be indifferent. Rather it means that I should see and treat you as an equal being. A qualitative study by psychologists Jory et al. on respect, or the lack thereof, in abusive intimate relationships and possible therapeutic interventions illustrates this vividly:

Most of the [30 abusive] men interviewed had internalized beliefs that reflected the hierarchical language of power, equating respect with submission, obedience, and deference rather than intrinsic worth ... Many [abusive] men ... seemed capable of feeling good only if their partner felt bad, and putting down one's partner appeared to be the prescription for feeling good in many of the men .... What is required with abusive men, once some level of accountability has been obtained, is a rethinking of what respect is and how one expresses it ... It is critical that the therapist identify the essence of respect based on intrinsic worth rather than power[.]64

Where one party to a negotiation does not treat the other party with respect, we can draw a negative inference. Either the first party does not view the second party as an equal - a position to which few would admit, though many implicitly harbor these views - or the first party has a very low assessment of the dignity of all people.

Related to equality are the matters of voice and autonomy. Subjects, unlike objects, have voices and subjects, unlike objects, have wills.65 If I expect to be listened to, then I should be obliged to listen to you. If I expect my suggestions to be taken seriously, then I should be obliged to take your suggestions seriously as well.66 If I expect my autonomy to be respected, then I should respect your autonomy. To illustrate, consider an example from the history of labor relations of a negotiation strategy known as Boulwarism that has been found illegal. As Mnookin et al. describe:

Lemuel R. Boulware, General Electric's Vice President of Relations Service from 1946 to 1960, informed the unions that he would carefully study market conditions and what comparable employees at other companies were paid and then make a "fair, firm [and also final] offer." A critical component of GE's strategy was a contemporaneous communications program selling its proposal to its employees and the general public. This also served as a commitment strategy to lock the company into its own position. This technique was ultimately [successfully] challenged on the grounds that it was an unfair labor practice [under the National Labor Relations Act] that in essence amounted to a refusal on the part of General Electric to negotiate.67

While arguments can be advanced both attacking and defending Boulwarism, no doubt one problem with Boulwarism from an ethical viewpoint is the lack of voice it allows the other party in the bargaining process. Beginning the bargaining process by insisting upon and committing to a "take-it-or-leave-it" offer allows the other party virtually no role in the dialogue.

How I see and treat you in a negotiation also helps to define who we are. People are not just individuals. They are also members of groups. If I deceive you to get what I want, then we do not have an honest relationship. If I intimidate you to get what I want, we lack mutual respect. Irrespective of whether our interests are largely convergent or divergent (and divergent interests can result in beneficial exchanges too),68 how we negotiate with one another is critical to our we define ourselves and how others perceive us (e.g., how the public perceives lawyers). I may hold one view and you may hold the opposing view, but if we are members of a democracy we have a voting mechanism for handling such matters, and that mechanism significantly defines who we are. The same applies in families. How a family makes decisions, including, of course, how they negotiate with one another, is as critical to defining the family as are its actual decisions. A family where decisions are imposed through physical force is very different from one where problems are discussed and consensus developed. In the long run, how we interact, which includes how we negotiate, is often more important than how we dispose of any single issue.

E. DENIAL AND MASKING

I recently gave a guest lecture in a colleague's professional responsibility class. At one point I asked the students, "How many of you think it's wrong to manipulate other people?" Most of the hands shot up. I then asked, "How many of you think that manipulating other people is a significant part of lawyering?"69 Most of the hands again shot up. "What do you make of this?" I asked. There was dead silence.70

For a wrongful practice to persist, denial of the practice's existence, whether done consciously or unconsciously, is usually a requisite element, for facing a wrongful practice can force its reform. For example, not only did the American legal system impose the fiction that slaves were property rather than people,71 but we (white society) worked to hide the fact of slavery from ourselves. As Perea et al. observe, "Despite the protections of slavery in the Constitution, its drafters were careful not to use the word 'slave' at all, despite language that was understood by all to refer to slaves. The drafters ... did not want to 'stain' the document by making any direct reference to slavery."72 This pattern is unfortunately common: there is both the primary crime and the secondary offense of denying the primary crime.

Several decades ago, John Noonan, Jr. argued that lawyers frequently impose masks upon people that hide their fundamental humanity.73 The system of slavery mentioned above is one of the most evil examples. Yet the practice, suggested Noonan, is prevalent throughout the law. When a law professor poses a hypothetical ("Suppose the promisor fails to deliver the note to the promisee,") when a lawyer writes a brief ("Defendant denies all claims by Plaintiff,") or when a judge dons a robe, the parties involved are not full people, but rather fragments of people, legal characters.

Masking of persons occurs in negotiation too. If, when negotiating, Jane sees Bill merely as a means to her ends, Jane is imposing a mask upon Bill. By seeing Bill as a mere means, Jane masks many central features of Bill's humanity, e.g., his autonomy, his dignity, and his fundamental equality with Jane. None are characteristics that a mere means or instrument possesses. Suppose further that, rather than facing her instrumentalization or masking of Bill, Jane would rather deny it to herself, and see herself as a humanistic person rather than as a manipulative person. It is clear that this practice can harm Bill, since seeing Bill as an object may lead Jane to manipulate, deceive, coerce, insult, or otherwise treat Bill wrongly. Yet what ramifications does this have for Jane's internal psychology?

Treating Bill as an object and simultaneously denying or rationalizing this to herself may be a source of psychological distress for Jane. As reflected in a variety of indicators, American lawyers experience exceptionally high levels of psychological distress.74 While there are undoubtedly many causes to this (e.g., economic pressures to produce many billable hours, the frequency of hostile interactions with others, etc.), part likely stems from the moral emptiness many lawyers experience. Though I would not claim that treating others as objects in negotiations is the root of such emptiness, objectifying others in negotiation and elsewhere (e.g., seeing one's client merely as a source of income) may play a part of it.

A study undertaken by a law student is particularly suggestive. Fourteen attorneys who were experienced negotiators from diverse practice areas were asked to respond to a series of complex negotiation ethics hypotheticals probing topics such as fraud by their client, puffery, candor with their client, exploiting mistaken assumptions, false demands, and so on.76 Their answers showed both tremendous variety77 as well as very limited knowledge of rules of profession ethics.78 Yet what was particularly interesting was the reaction of some to the interview:

A few attorneys were ambivalent about their answers. One peculiar reaction came from an interviewee who remarked that he felt like shooting himself following the interview. His responses to some of the questions may have rubbed his conscience the wrong way. One entertaining interviewee claimed that his motto was "screw the other side." He expressed only passing regret that this was the nature of the real world.79

While I fear for people who must negotiate with the second respondee more than those who must negotiate with the first, I fear for the second respondee more than for the first. The first recognized his moral demise once it was brought into his consciousness and was pained by it. The second may have "felt no pain," but, like a ticking bomb, may someday pay a tremendous price for an amoral or immoral existence.

Next are what one might call the problems of isolation and inflexibility. By objectifying Bill, in all likelihood Jane precludes the possibility that she and Bill will enjoy a connected world of mutuality, but rather live in a "dog-eat-dog" one. Where she cannot see Bill's humanity, cognitive dissonance may also prevent her from seeing other people's humanity. Jane may lose her ability to distinguish between the humane and the inhumane, as well as the flexibility and sensitivity of judgment inherent in that process.

Jane may also come to mask herself to herself and thereby limit her own humanity. Consider by analogy the white racist who thinks blacks are inferior. The more he defines the other in terms of blackness, the more he implicitly defines himself in terms of whiteness, thereby masking his own fundamentally a-racial humanity. Though she may think of herself as a "smart negotiator" (a mask), the more Jane defines Bill as an object to be manipulated, the more she defines herself as a manipulator rather than a person. Through objectifying others, one also tends to objectify oneself. The external objectification has a correlate internal fragmentation.80

F. GRAPPLING WITH MORALITY

Given both the moral responsibility to respect others in negotiation and (what I take as) the fact that many of us commonly fall short of this goal, objectifying the other person and simultaneously, though unwittingly, diminishing ourselves, one may at first see a dismal, pessimistic picture. If we had no capacity for change, then pessimism might be warranted. However, if one accepts a capacity for human change, then a more optimistic image of human existence can emerge. This is the image of people who define themselves by their willingness to grapple with the morality of their own actions and strive towards moral behavior. Self-examination vis a vis moral benchmarks, coupled with the willingness to try to improve, is amongst the noblest of human endeavors. As Socrates expressed in Plato's Apology:

If I tell you that this is the greatest good for a human being, to engage every day in arguments about virtue and the other things you have heard me talk about, examining both myself and others, and if I tell you that the unexamined life is not worth living for a human being, you will be even less likely to believe what I am saying. But that's the way it is, gentlemen, as I claim, though it's not easy to convince you of it.81

We see this concept too in the story of Biblical story of Jacob's wrestling with an angel - perhaps himself, perhaps his conscience, perhaps morality, and perhaps God - before he meets and reconciles with his brother Esau. By such wrestling, Jacob is transformed, and subsequently renamed. As the Bible explains, "Your name will no longer be Jacob, but Israel [literally, God-wrestler], because you have struggled with God and with men and have overcome."82

Negotiation is quintessentially a human encounter and provides not only a rich ground for grappling with another person, but also for grappling with one's own morality. Just as we experience many of our greatest fulfillments and frustrations in relationships, there too we experience many of our greatest moral challenges. Negotiation is one of those places where we, consciously or unconsciously, define ourselves as people.

The struggle to grapple with morality so as to change one's conduct is not an easy one. Socrates' trait of probing beneath his society's surface and revealing its hypocrisies led to his death. When grappling with the angel, Jacob wrenched his hip. For some, facing the extent to which one objectifies others in negotiation which by implication may force one to face the extent to which one objectifies others generally - can be a painful experience. It involves facing the part of ourselves that would simply use others with disregard to all else. Yet the personal benefits from such struggle can be tremendous. Most obvious are developing one's moral integrity and, relatedly, one's sense of connectedness to other persons.

G. ETHICS GROUNDED IN HUMAN DIGNITY, NOT NEGOTIATION PROCESS

Before addressing some critiques of the orientation ethics argument made above, it may be helpful to distinguish this argument from some other arguments advanced over the past several decades about how one should negotiate. Fisher and Ury have advocated "principled negotiation" as a general approach to negotiations.83 In the legal realm, scholars such as Menkel-Meadow and Mnookin et al. have suggested that lawyers approach negotiation in a problem-- solving rather than adversarial manner.84 While the above scholars are sensitive to the problem of how to negotiate with a party who is not principled or collaborative,85 no doubt one selling point for such approaches is that if both parties follow them, on average one would expect the parties to be made better off than if they do not. Such approaches, if bilaterally followed, solve the negotiation "prisoner's dilemma," i.e., though "defection" may be individually advantageous, both sides will be made better off if they assume collaborative roles than if they both assume combative roles. Further, it has also been powerfully argued, most notably by Menkel-Meadow, that adversarial litigation ethics should not be imported by lawyers to Alternative Dispute Resolution ("ADR") mechanisms such as mediation and settlement negotiations, for such processes were not built upon adversarial paradigms.86 Accordingly, some may wonder how the argument for respect in negotiation presented above relates to these types of arguments that are grounded in visions of the negotiation or dispute resolution process.

Unlike these other arguments, my argument for orientation ethics does not depend on a particular view of the negotiation process. The orientational duty to respect others in negotiation is rooted in the other person's humanity. Derivative upon the conception of fundamental human dignity, we have a general duty to respect other people, and the negotiation process does not excuse us of it. Note, however, that the prescriptive views of both non-legal and legal negotiations mentioned above may overlap with the duty of respecting other people. A "principled negotiator" who looks to legitimate standards to resolve conflicts rather than trying to create a power-based contest of the wills is more likely to respect the other party than one who does not.87 A lawyer who sees himself as a problem solver is more likely to listen to the other side and value her autonomy than one who sees himself as a gladiator. Hence, though not derived from these particular views of the negotiation process, the ethics of orientation dovetails nicely with such approaches.88

II. CRITIQUES AND RESPONSES

Some may contend, "If one wants to view the other party in the negotiation not merely as a means to one's ends, but as a person, that is all well and good. However, negotiation ethics does not require it." At this point, they might advance many possible arguments. Below, I address what I take to be the most significant arguments. The first four (arguing from reciprocity, prior harm, custom, and self-protection) are forms of excuse while the fifth (arguing from free market economics) is an affirmative justification. The arguments are: (i) "As the other side hasn't treated me with respect, I'm not obliged to treat them with respect;" (ii) "Given the harm that the other side has done to me, I am not obliged to treat them with respect;" (iii) "That's just how the game of negotiation is played. It's a no-holds-barred game where each side just tries to get the best deal it can;" (iv) "If I try to treat them with respect, I'll get 'eaten alive', for they won't be trying to respect me and thus I will be disadvantaged in the negotiation;" and (v) "In negotiation, each side should see the other side solely as a means, because social wealth will be maximized when each person eagerly pursues his/her own self-interest."

A. FOUR EXCUSES

1. RECIPROCITY - "As THE OTHER SIDE HASN'T TREATED ME WITH RESPECT, I'M NOT OBLIGED TO TREAT THEM WITH RESPECT."

On a basic level, the claim that the other person's failure to respect me in the negotiation justifies my failure to respect him/her can be answered by the child's maxim, "Two wrongs don't make a right." Consider an account of an altercation in part triggering the dismissal of former Indiana University basketball Coach Bobby Knight:

[In explaining Coach Bobby Knight's dismissal, Indiana University President Brand mentioned] Mr. Knight's confrontation with Mr. Harvey, [a 19-year-old Indiana University freshman]. Mr. Harvey told the campus police that he bumped into the coach outside the arena and said, "Hey, what's up, Knight?" The coach responded by grabbing Mr. Harvey by the arm and cursing him for his lack of respect, according to Mr. Shaw.89

While the alleged altercation was certainly not a negotiation (at least in the conventional sense of the word), the moral is clear: generally speaking, another person's failure to respect you does not justify your failure to respect them. In the above account, irrespective of whether Mr. Harvey's bumping into Coach Knight and addressing him simply as "Knight" (rather than "Coach Knight" or "Mr. Knight") was mildly or severely disrespectful, Coach Knight was unjustified in his response. The moral duty to respect the other person is not rooted in how they treat you, but in how they should be treated. Reciprocity is not the basis for treating the other party with respect, rather each person's humanity is. One party's incivility does not justify the other party's uncivil response.90

A hypothetical may illustrate this issue. Assume that you have scheduled a meeting with Bob at 6:00 p.m. at your office to see if you can settle a contractual business dispute. You chose 6:00 as you want to get home by 7:00 to have dinner with your family and you anticipate you can conclude the negotiation by then. 6:00 arrives, but Bob does not. At 6:15, you get a call. Bob says he's stuck in traffic and will be there by 6:30. 6:30 arrives, but Bob still has not. At 6:50, he finally shows up.

How might you respond?91 A few possibilities run through your mind: (a) externally "ignore" the delay and commence negotiating as though it were 6:00; (b) address the delay (e.g., "I'm expected at home for dinner shortly, and we don't have adequate time to negotiate. I would like to reschedule our appointment. I would also like to say that I am troubled at having to reschedule this. I had set aside the time for us to meet from 6:00 to 7:00, and with your late arrival that time has been largely wasted."); or (c) retaliate (e.g., make him wait an hour - not just 50 minutes - before your next meeting to convey the message that you aren't someone to be pushed around).

The response that concerns me most is retaliation, and it does so for both pragmatic and, relatedly, ethical reasons. In conflict, parties commonly assume the worst about one another, and develop distorted images of their "opponents," attributing to them hostile motivations that they do not in fact hold.92 For example, the party who has been made to wait may quickly fantasize that Bob was playing a malicious game, thinking to himself, "If I intentionally delay my arrival, I'll do better in the negotiation. He'll be more hungry and tired than I, for the 'traffic' I'm 'delayed' by is in fact a restaurant I quite like! As he'll be distracted by the thought of getting home for dinner, and perhaps even by his anger at me, I'm sure I'll get the best of him." But how does one know that Bob was not simply stuck in traffic or perhaps delayed by a sudden emergency? Though some may see tit-for-tat as an optimal strategy prescribed by game theory,93 it does risk retaliatory cycles. Further, where there is error in a system, as there is in most human interaction, even from a game-theoretic viewpoint an approach of tit-for-tat with forgiveness may do better than straight tit-for-tat.94

But what if one knows or at least strongly suspects that the other side has intentionally delayed his arrival to manipulate you?95 Even here ethics calls for restraint. While one's anger is certainly understandable, the question becomes whether his disrespectful act justifies your treating him with disrespect, for the presumption is that one should treat all people with respect. What justification might one offer? Two common justifications are to cast oneself as a moral educator ("I'll teach him a lesson") or as a public defender ("By retaliating against him now, I'll stop him from acting this way towards others in the future."). Such reasoning, however, often rings hollow and simply serves to mask revenge. If one wanted to morally educate the other party, would not "calling" him on it communicate the message more clearly? For those who would cast themselves as public defenders, what reason has one to think that retaliating with disrespect will cause the other party to be more respectful of other people in the future? Such retaliation could cause the other party to be more disrespectful of other people. Disrespecting Bob may reinforce his beliefs that it is a dog-eat-dog world and that what he needs to learn is how to be an even tougher "dog."

My argument is not that one should let oneself be mistreated. Rather, treating the other person like an object reduces you to his (presumed) level. The fact that he has acted wrongly does not excuse your acting wrongly. Before they fall from power, war criminals often try opponents in kangaroo courts. When we try war criminals, we should not. Their wrongful acts do not justify our wrongful acts. We should respect others because, as humans, they have a certain fundamental dignity. Disrespecting them when they disrespect us diminishes us. Our identity hinges upon whether we respect them, not whether they respect us.

2. PRIOR HARM - "GIVEN THE HARM THAT THE OTHER SIDE HAS DONE TO ME, I AM NOT OBLIGED TO TREAT THEM WITH RESPECT."

A colleague once shared with me the following experience. She was driving her car, slowing for a stop light, when another driver drove into her car from behind. The accident was clearly his fault. In her car sat her ten-year-old son. The boy sustained severe injuries. He was hospitalized for more than a month. When released from the hospital, he had permanent injuries. A lawsuit ensued, and eventually a settlement was negotiated through the attorneys. Despite the settlement, the mother remained quite upset at the other party. She was angered that her son was permanently injured. She was also angered that the other party had never apologized for injuring her son.96 Given the harm that he had caused her son, would the mother be justified in failing to treat the other side with respect?

There is no question that the mother's anger towards the other party is understandable. Indeed, to ask that the mother not be angry at a person who had caused permanent injury to her son and who had never said he was sorry is unrealistic. Yet the question remains, does the injury that the other party caused her son, and hence her, justify the mother's not viewing the other party with respect? And what of the case where the other party intentionally causes the injury? Suppose the other driver, in an act of cruelty, had purposefully driven his car into theirs with the goal of injuring the child. Can it be maintained that the mother whose son was intentionally injured must respect the attacker? Could the reverse be true? Might ethics call for disrespect in such cases?

I do not think that there are simple answers to these questions. However, I will offer some comments focusing on two different ways of framing the issue.

Some may frame the issue as follows.97 If one is to justify disrespecting the other party in such circumstances, why does the fact of their having caused you or someone you care about injury serve as such a justification? The original duty to respect the other party was grounded not in their relationship with you, but in rather the fact of their humanity and the fundamental dignity that should attach to it. Respecting people one likes is of course easy. The challenge is in respecting people one dislikes. Can it be said that their injury towards you erases their humanity and the dignity that should attach to it? Consider by analogy an argument advanced by Rabbi Harold Kushner concerning perfectionism and love.98 Kushner asks whether, as imperfect beings, we are lovable either by God or people. Kushner suggests that if only perfect people deserve to be loved, then none of us deserves to be loved, for none of us is perfect.99 A similar argument may apply to respect: if only people who never hurt other people merit respect, then none of us would merit respect. Though we deplore the injurious act, we should still have respect for the humanity of the injurer.

One might respond that, while all of us, imperfect though we are, may be lovable, there is no requirement that one particular person must love another particular person. So too while one may have a general duty to respect others, if another person injures one severely, one is no longer obliged to respect that person. Under such an approach, the question becomes whether the injury was of a sufficiently severe nature so as to justify your no longer respecting them. Perhaps the mother whose son has been intentionally injured has no duty to respect the injurer, but the mother whose son has been unintentionally injured still has a duty to respect the other driver.100 Perhaps ethics cannot require what is emotionally infeasible, and, if the injury is sufficiently severe, then the emotional infeasibility justifies not respecting the other party.101 One might also here introduce the concept of prerogative: following a very severe injury, the injured party is no longer morally bound to respect the injurer, but still may do so if she wishes. Note too the linkage with forgiveness: many see forgiveness following an injury as the injured party's prerogative.102

One critique of this view is the knife-edge way in which respect would work. Suppose we have a scale judging the severity of injuries, A being the least injurious and Z the most injurious. Suppose further that we said that for all injuries more severe than injury M of being punched the injured party is released from the duty to respect the injurer, but for all injuries less severe than M the injured party is bound by that duty. It may be easy to see why an injury like looking askance at someone (B) does not justify the release from the duty to respect the injurer and why an injury like torture (Y) would. Yet is it just that the injury of being kicked (N) completely releases one from respecting the other person but after the injury of being slapped (L) one is fully bound to respect the other person? The non-incrementalism of such responses is problematic.103 Arbitrary boundaries should not drive substantive conclusions.

Rather than attempting to resolve the questions of ethical hierarchy of whether a severe injury releases the injured from the duty to respect the injurer, and, if so, how severe that injury must be, a second and perhaps more useful approach is to frame respect as a goal-oriented process of incrementally trying to see the fundamental dignity of the other person more than one is naturally inclined. Recall the understanding of respect as a verb, of "looking again" to try to see the other as a person. What would such an understanding imply where a person has injured you? In such circumstances, the duty to respect the other party is in large part a duty to make a good faith internal effort to advance, if only incrementally, the degree to which one sees the fundamental dignity of the injurer. Whether one has tremendous anger following a severe, intentional injury or is only mildly bothered by a slight, unintentional one, the injured party may still be able to take such an incremental step.

There are several benefits to this. First, like a prayer for peace in the midst of war, by maintaining a goal of respect, one helps to maintain one's own identity as a respectful person. Even if one cannot achieve the goal fully at the time, it will not be lost altogether. Second, having a goal of trying to respect the injurer can be a useful prompt in the process of forgiveness.104 Psychological research has shown that empathy - seeing the world from the other party's perspective - is a central explanatory variable in forgiveness.105 Trying to see the other party as a person with dignity rather than just an object of one's hate can involve, inter alia, trying to see the world from their perspective. Respect, like forgiveness, frequently involves a good dose of empathy. Trying to respect the injurer can be instrumentally useful to the injured party who seeks to move beyond the injury. Third, framing respect as an incremental step irrespective of the severity of the injury helps avoid the knife-edge quality of the hierarchical framing discussed above. Rather than thinking of the duty to respect other persons in binary terms - either you have the duty or you don't - and asking under what circumstances one is relieved of that duty, it may be more useful to understand respect as an incremental duty to try to respect another slightly more than one's natural inclination. This argument should not be pushed too far. In some cases (e.g., torture) to even ask that the injured party to take the incremental step of "looking again" at the injurer may be too burdensome. However, the injured party who does try to see the injurer as a full person may benefit tremendously, even after the most extreme of injuries.106

3. CUSTOM - "THAT'S JUST HOW THE GAME OF NEGOTIATION IS PLAYED. IT'S A NO-HOLDS-BARRED GAME WHERE EACH SIDE JUST TRIES TO GET THE BEST DEAL IT CAN."

Who said that this is how the game of negotiation is played?107 In some organizations, people treat one another as mere instruments, in other organizations they do not. In some families, people abuse one another, in others they do not. In some circles, lawyers lie to one another, and in others they do not. Further, even if that is how the "game is played" in a certain setting, why should it be played that way? Centuries ago Hume denounced the "naturalistic fallacy" of concluding that because the world is a certain way, that is how it should be.108 Recall Holmes' quip, "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from a blind imitation of the past."109 The existence of a practice does not serve as its own justification, and merely asserting, "That's just how it's done," carries little moral force.

The statement, "That's just how it's done," also denies one's responsibility. In some arenas it may be impossible for one individual to change the negotiation culture. Even if he wanted to make the trading process less frantic, a typical trader lacks the power to change the way trading is conducted in the New York Stock Exchange's "pit." Most negotiations, however, are dyadic encounters where an individual has a great deal of power to shape the environment.110 Arbitrarily asserting, "That's just how it's done," cannot justify one's abdicating responsibility in such a setting. Further, how can one know that the other party is not simply saying to himself, "Well, I alone would not choose to behave this way, but given how I expect my opponent to behave, so too I will behave?"

4. SELF-PROTECTION - "IF I TRY TO TREAT THEM WITH RESPECT, I'LL GET 'EATEN ALIVE,' FOR THEY WON'T BE TRYING TO RESPECT mE AND THUS I WILL BE DISADVANTAGED."

Is treating the other party with respect when they don't treat you with respect negotiating with "one hand tied behind your back?" If so, why should ethics require you to let others take advantage of you? Though some may reject this line of argument out of hand - ethics is about doing what is right, and if sometimes this involves self-sacrifice then that is simply the price of being an ethical person111 - I think this argument merits consideration. Upon inspection, however, this argument does not carry nearly the weight that many would attach to it.

Treating others with respect does not mean being a patsy. It is one thing to refrain from insulting other people, but a very different thing to let oneself be insulted. Treating others with respect by no means implies that one should let others take advantage of oneself. Nor does it imply that one should not competently advocate for one's own interests. Just as an athlete can be fiercely competitive within the rules of a game, so too a negotiator can advocate for and protect himself while simultaneously respecting the other side. Further, in many, but not all, negotiation settings, one has the option of "walking away." Being aware of this option can reduce the possibility that one will be taken advantage of or treated disrespectfully.

If one has a duty to respect others, then surely one has a duty to respect oneself. Such a duty of self-respect includes protecting and advocating for oneself.112 Recall Hillel's questions, "If I am not for myself, who is for me? And when I am for myself alone, what am I?" Not only does an individual have a responsibility to "be for" himself, but, as the order of Hillel's questions suggests, that responsibility may be ethically prior to his responsibilities towards others.113 For some individuals, such self-advocacy is trivial. For others, self-advocacy can be a significant challenge in negotiation: many are better at standing up for the interests of others than they are for their own interests.114 At the same time, pursuing one's interests should not be an unbridled process. Rather it should be subject to ethical constraints on how one should treat people. Indeed, a literal translation of Hillel's second question is not, "And when I am for myself alone, what am I?" (which suggests a general duty to be concerned for others) but rather "And when I am for myself, what am I?" (which focuses on awareness of how one acts and who one is when one pursues one's own ends).115

Respecting the other party in a negotiation can often be to the respecter's benefit.116 Listening to the other party can lead to creative, value-enhancing solutions. Recognizing the other party's autonomy can result in agreements to which both parties will adhere. Being truthful with the other side can lead the other side to accept assertions or commitments that, absent such truthfulness, they would not. Where a negotiation has integrative potential, treating the other side with respect may help the parties discover that potential, which in turn benefits the respecter, not just the respectee.

Failing to treat the other side with respect can "poison" a negotiation.117 Negotiation is a two-way street, and if you don't respect the other side, they may call off the negotiation. To illustrate, consider the "ultimatum game," a famous and well-researched example from game theory. In the ultimatum game, one player (A) is given a sum of money, say $100, and is told to divide that sum between himself and B. A can divide that sum however he chooses, however A gets his share only if B accepts B's share. For example, A may allocate $75 dollars to himself and $25 to B. B then gets to decide whether to accept the $25 or reject A's offer and receive nothing. If B rejects A's offer, A too will receive nothing, but if B accepts A's offer, A will get $75.

How should A divide the $100? From a theoretical perspective, one might think that A should offer B only $ 1, or whatever is the lowest increment above $0, with the goal of keeping $99 for himself. If B is "rational" (where "rationality" is defined quite narrowly), when faced with a choice of $1 or $0, B should choose to take the $1. However, in empirical experiments, many B's do not act that way. The offer of $1 strikes them as unfair, and they reject it. Accordingly, even if A is entirely self-interested and cares nothing about treating B fairly, A will usually do better by offering B far more than $1. As Mnookin and Ross conclude from their review of the empirical literature:

Two results from [empirical ultimatum game] research are [salient]. First, ultimatums offering the recipient less than 50 percent of the purse, especially ones offering much less than 50 percent, are frequently rejected even though the rejecting party thereby forfeits its only opportunity for gain. Second, the most common offer is a fifty-fifty split, and extremely unequal offers are relatively uncommon, which suggests that the party offering the ultimatum accepts the equity principle, or at least anticipates correctly that the other party would rather see the entire purse forfeited than accept a grossly inequitable division of the purse.118 The general lesson is that failing to respect the other party can be to one's own detriment, resulting in no agreement where a mutually-beneficial agreement was possible.119

Empirical research on legal negotiations also supports the view that treating the other party with respect is likely to be to the respecter's benefit. Approximately two decades ago, Gerald Williams conducted a now-famous survey in which he asked lawyers to assess other lawyers as negotiators.120 Two of his main findings, which have been reconfirmed in a recent study by Andrea Schneider, were that (1) attorneys with a cooperative negotiating style are generally seen as more effective negotiators than attorneys with competitive negotiating styles, and (2) ethical behavior is associated with effectiveness, rather than ineffectiveness in negotiation.

Williams surveyed lawyers practicing in Denver and Phoenix and asked them to describe the characteristics of the lawyer with whom they had last negotiated (the assessed lawyer) as well as that lawyer's effectiveness. Based on the characteristics described, Williams divided these 351 assessed lawyers into two types: those with cooperative negotiation styles and those with competitive negotiation styles. While there are some important criticisms of his approach, his results are nonetheless striking.121 Sixty-five percent of the assessed lawyers had "cooperative" negotiating styles while only 24% had "competitive" negotiating styles, thus refuting the popular vision of lawyers as predominantly adversarial negotiators. Further, of the assessed lawyers with cooperative styles, 38% (of the 65%) were seen by their colleagues as effective negotiators, 24% were seen as average negotiators and 2% were seen as ineffective negotiators. Conversely, of those with competitive styles, 6% (of the 24%) were seen as effective negotiators, 10% were seen as average negotiators, and 8% were seen as ineffective negotiators.122 In short, far more attorneys were cooperative rather than competitive, and cooperators were far more likely than competitors to be seen by their peers as effective.123

Williams' study also helped refute the view that ethical negotiating behavior was ineffective. Williams observed that both cooperative negotiators who were assessed effective and competitive negotiators who were assessed effective were also seen as, "ethical, trustworthy and honest, thus dispelling any doubt about the ethical commitments of effective/competitors."124 He concluded that:

Although literature on professional responsibility generally argues that high ethical standards are a precondition to success in practice, many law students and some practicing attorneys continue to believe or suspect that they must compromise their ethical standards in order to effectively represent their clients and attain success in practice. The findings of this survey suggest such compromises may be not only unnecessary, but actually counterproductive to one's effectiveness in negotiation situations.125

Ethical negotiation was thus also effective negotiation.

Schneider's recent study of lawyers in Chicago and Milwaukee followed Williams' methodology and reconfirmed his results.126 Approximately 700 attorneys responded to her survey asking them to assess their negotiation counterparts. As with Williams, the majority of the assessed attorneys were seen as cooperative rather than competitive. In Schneider's study, 64% of lawyers assessed had "problem-solving" negotiation styles (akin to Williams's "cooperative") and 36% had "adversarial" negotiation styles (akin to Williams's "competitive").127 Cooperative attorneys were far more likely to be seen as effective than competitive attorneys. "Respondents rated only 9 percent of their adversarial peers as effective ... [whereas] more than 50 percent of problem-solving lawyers were perceived as effective and only 4 percent of these problem-solving lawyers were seen as ineffective. Therefore, contrary to the popular (student) view that problem-solving behavior is risky, it is instead adversarial behavior that is risky."128 Once again, a cooperative approach to negotiation was generally seen as more effective than a competitive one. Further, when lawyers were asked to describe the characteristics of effective problem-solving negotiators, "ethical" was the most common adjective used. Others adjectives used were "personable" (3rd on the list), "trustworthy" (5th), "communicative" (9th), and "fair-minded" (10th).129 Similar results were found with adversarial attorneys. Adversarial attorneys who behaved ethically were far more likely to be seen as effective than those who behave unethically.130 Such results support the view that, whether one takes a problem-solving approach or an adversarial approach to the negotiation, respecting the other party is often to the respecter's material benefit.131 Hence, the criticism that by respecting others one will disadvantage oneself largely fails on its own terms.

Must this always be the case? Might not there be some negotiations where disrespecting the other party is to one's material benefit?132 For example, could there be highly-distributive negotiations where disrespectful tactics such as threats, lies, and coercion work to one's advantage? From Von Clausewitz's discussion of "total" war,133 to Schelling's insights into commitment tactics,134 to White's assertion that deception lies at the heart of negotiation,135 many have seen the benefits to "hard" tactics in distributive settings.136 While negotiations are certainly not wars, might not such tactics be most effective strategically in some negotiations?137 That possibility certainly makes theoretical sense. If I can lie to you effectively and pretend that I have one of your competitor's offer's "in my pocket" that I don't, you may be willing to raise your offer. If I can intimidate you effectively, sometimes you will cave in.138,139

If such is the case - that sometimes there is a distributive price to be paid for respecting the other party in a negotiation - how is a person who wants to be ethical to respond? Might that person properly reason, "If people in this business are sharks, and I want to be in this business, then I must sometimes act like a shark too. It's not how I would create the world, but it's the world in which I must function. I cannot play it - and survive - with one hand tied behind my back. Fairness too, may even be on my side. If they disrespect me, we will arrive at fairer results if I disrespect them than if I respect them."

While I cannot reject such a view entirely, it is worth differentiating between "defensive" disrespect and "offensive" disrespect. Instrumentalizing the other person so as to avoid being taken advantage of oneself or so as to produce fairer results differs from initiating that psychological process for one's own strategic benefit. In the former case, one does not initiate the cycle of disrespect, and, as mentioned, there is the possibility that defensive disrespect will produce greater parity in the substantive outcome. In addition, there is the issue of future behavior. As Sisela Bok argued concerning lying, one of the great dangers of lying is that by lying in one area, one will grow accustomed to lying and begin to lie in other areas.140 The same danger is true, I believe, with disrespecting people. When a negotiator feels that he must defensively disrespect others to avoid being taken advantage of, perhaps he is under a duty at least to be aware that when so acting he is disrespecting a person. By facing the moral problem of such disrespect, rather than by ignoring or denying it, he can maintain greater integrity in a suboptimal world, as well as maintaining a vision of a better world.

Finally, the pure deontological position of one who decides to respect the other side despite the fact that this may be to his material disadvantage should not be discounted. Often people pay material prices for maintaining their ethical values. There is both nobility and integrity to such sacrifice. Consider the legend of Rabbi Akiba who, rather than renouncing his beliefs, suffered punishment:

[Around] the year 134 [C.E.] ... the Romans issued their drastic decree forbidding not only the practice but also the study of Torah [Jewish teaching].

When [he was] warned that he was courting death by continuing to teach [Torah] publicly, Akiba [who was then ninety five years old] replied with the parable of the fishes and the fox. The fox, coming to the river's bank, suggested to the fishes that they might find safety from the fisherman by coming on the dry land. But the fishes replied, "If in the water which is our element we are in danger, what will happen to us on the dry land, which is not our element?"

"So, too," continued Akiba, "if there is no safety for us in the Torah which is our home, how can we find safety elsewhere?"

[Akiba was imprisoned and tried three years later.] He was found guilty [of teaching Torah] and sentenced to death.141

Sometimes there is a material price to be paid for adhering to one's values. The spiritual reward of maintaining one's integrity can far outweigh any material sacrifice.

5. THE "FREE MARKET" ARGUMENT

Arguments 1 through 4 above offered largely-defective excuses for seeing the other party in a negotiation solely as a means. Now consider an argument that offers not an excuse but an affirmative justification. This might be called the "free market" argument. It can be roughly stated, "In negotiation, each side should see the other side solely as a means, for social wealth will be maximized when each party focuses on pursuing his or her own interest and leaves it to others to fend for their own interests." Though Adam Smith addressed matters of ethics, non-self-- interested actions, and drawbacks to free markets much more than is commonly recognized,142 a proponent of this view might well link it to Adam Smith's famous statement, "It is not from the benevolence of the butcher, the brewer or the baker that we expect our dinner, but from their regard to their own self interest. We address ourselves not to their humanity but to their self-love, and never talk to them of our own necessities but of their advantages."143

Such "free market" views have many supporters (and critics) within legal circles;144 however, in addressing normative questions of how we should treat one another, such arguments are limited. Even accepting, arguendo, the claim that the free market produces economic efficiency, efficiency tells one nothing about equity, a topic of certain ethical relevance.145 If a poor person is starving and a wealthy person with an excess of food stands nearby, should the wealthy person offer aid? The answer to that question undoubtedly must be yes; however, under a free market view the answer may well be no - it depends only upon whether the rich person views it in his own interest to give the poor person food.

Asserting that people should self-interestedly pursue their own ends does not address the questions of under what moral and legal constraints they should operate when pursuing those ends. Take an extreme example like murder. Bill may grow richer if he kills Jim and takes Jim's possessions, but this of course does not justify murder. Consider now a less extreme example. It may be acceptable to dangle an unreachable "rabbit" in front of dogs at a race track, yet many would judge it wrong to dangle "possibilities" in front of another during a negotiation that one has absolutely no intention of solidifying. Though self-- interested actions coupled with the division of labor may often be economically beneficial, this tells us little about the limits or requirements concerning how people should treat one another.146 Current utilitarian economic models show tremendous indifference, if not a deafening silence, towards the matter of how one individual should treat other individuals. In such models, how one treats a person is essentially no different from how one treats an object such as an orange. Both are simply inputs into one's utility function. Living an ethical existence requires sensitivity to how one pursues what one pursues.

The roots of seeing other people as mere objects in the pursuit of wealth run much deeper than contemporary economic theory, and it is worth taking a moment to mention two of them. These are (1) the history of human objectification for material advancement and (2) the over-reliance on materialism, especially comparative materialism, in the human search for psychological and spiritual meaning. By no means will I treat these subjects fully. Nevertheless, these two roots are worth addressing. How we see and treat people in negotiation is an aspect of how we see and treat people generally. Changing the orientation we take to others within negotiation implicates these deep aspects of our culture and our self-understanding.

The history of human objectification for material advancement within Western society is long and repugnant.147 American slavery - a form of economic racism - is an extreme example,148 but there are many "lesser" forms of such profit-driven objectification, including colonialism (where the colonizer terms the colonized as an inferior to be used for his profit),149 sexism (e.g., the lower wages women receive for equivalent work), and the improper treatment of workers generally (recall that what we now term employment law was once called "master-servant" law). When considering the history of utilitarian ethics and associated economic works like The Wealth of Nations,150 it is noteworthy that these works were produced from the center of the British empire, a colonial power.151 One can imagine that a colonizer like Britain needed to construct arguments to rationalize the practice of colonialization, which fundamentally treated the colonized as objects rather than subjects.152 What is striking for our purposes is that the pattern of treating other people solely as objects for one's material advancement maps squarely to the core ethical challenge of negotiation.

The human search for spiritual and psychological meaning is undoubtedly as old as humanity itself. No doubt this quest affects a significant part of the human psyche.153 In response, many have focused on material achievement. The pleasure sought from such pursuit can be either of a direct type ( "I will be happy by possessing more goods than I currently do") or of a comparative type ( "I will be happy if I possess more material goods than you.")154 The first approach might be called "simple materialism." The second might be called "comparative materialism."

Provided that it is appropriately bounded, I do not take issue with simple materialism. It is good for people to meet their material needs. It also is good for people to derive pleasure, and material consumption certainly can be a source of pleasure. Such consumption-based pleasure, however, should not be pursued with disregard to all else. Many would agree that it is misguided to make consumption the focus of one's life, that it is wrong to partake in wasteful or excessive consumption, particularly when others are in need, or (as was discussed above) that other people should be treated as mere objects in one's pursuit of wealth.

Comparative materialism, on the other hand, is almost always ethically problematic, yet it is also endemic to how many people approach negotiation. Before addressing the ethical issue, some cultural background may be in order.

Sociological research supports the prevalence of comparative materialism. Several decades ago, Richard Easterlin conducted a seminal study of the link between economic development and human happiness.155 Easterlin examined data on individuals from around the world and discovered that, on average, people within wealthy countries were not significantly happier than people within poor countries, however, wealthy people within a given country tended to be significantly happier than poor people within that country.156 How is one to understand these results? Easterlin offered perhaps the simplest explanation, "The basic idea was stated quite simply by Karl Marx over a century ago: 'A house may be large or small; as long as the surrounding houses are equally small it satisfies all social demands for a dwelling. But if a palace rises beside the little house, the little house shrinks to a hut.'"157 For many people the link between material success and happiness seems to be a zero-sum one: what matters is that I possess more than you, not what I myself possess. Such a view is reflected in Western culture on many levels. Many foundational Biblical stories depict sibling rivalries (e.g., Cain and Abel, Isaac and Ishmael, and Jacob and Esau) where the characters appear to understand both Divine and parental love in zero-sum, materialistic terms.158 Popular sports like basketball, football, and baseball also present this frame: implicit in the definition of one side winning is the other side losing.

In the context of negotiation, a paradox arises from comparative materialism.159 If what it means for each of us to do well is to do better than the other, then, at least as to the distributive aspect of the negotiation, both of us cannot do well. In my opinion, such a game is ultimately spiritually unfulfilling for both the "victor" and the "vanquished". Focusing on "doing better than" another to feel good about oneself is not a morally-grounded source of fulfillment, and hence not a source of lasting fulfillment either.160

III. LAWYERS AND OTHER AGENTS

The analysis above has focused upon the basic case of direct, principal-to-- principal negotiations. Yet negotiations are often conducted through agents. In realms such as law, business, politics, and international diplomacy, negotiating through agents is the norm rather than the exception.161 For example, after a lawsuit has been initiated, it is common for the lawyers to conduct the negotiations on behalf of their clients. Observe too that whenever a corporate entity negotiates, by necessity it must do so through agents, that is, through particular individuals. Even if the president of a business conducts the negotiations herself, she is ultimately the corporation's agent. What implications does this have for orientation ethics?

Below I will consider this in two stages: (1) how should orientation ethics influence agents who negotiate on behalf of others, and (2) how should orientation ethics influence lawyers - a particular subset of agents with distinct professional norms - who negotiate on behalf of clients?

A. AGENCY

The fact of agency does not nullify the duty to respect the other party. As it is wrong for the principal to view or treat the other side as a mere object when negotiating, it is also wrong for the principal's agent to view or treat the other side as a mere object when negotiating. What is wrong for a person to do directly does not become right when s/he delegates the task. Role ethics do not facilely excuse the wrong.162

What about the converse circumstance? Might the fact that the other side uses an agent to conduct its negotiations serve as a justification for treating that agent like an object? Here too the answer is answer no. Suppose that Dan is directly selling his used car to Ernie and that one accepts that it is wrong for Dan to lie to Ernie in that process. Now suppose that Dan is selling his used car to Fabulous Car Company and is negotiating with George, an employee of Fabulous. Must Dan treat George with respect even though George represents a corporation?163 At first one might think that Dan need not respect George, for the argument advanced above grounded the duty of respect in the fundamental dignity of the other person, and George's principal, Fabulous, is not a person. However, the agent George is a person who deserves to be treated with respect. Further, when George negotiates on behalf of Fabulous, he ultimately represents the interests of the people behind that corporate name (e.g., the stockholders and the employees), and these people deserve to be treated with respect. Just as it is wrong to steal jewelry from an individual, it is wrong to steal jewelry from a department store. This is not to say that in all respects organizations are like people. While both may charge theft, an individual who has a necklace ripped from her throat may also claim assault, but a store that has a necklace ripped from a mannequin cannot. Yet, for most negotiating circumstances that I can envision, just as one's use of an agent does not relieve one of the duty to respect the other party, the other party's use of an agent does not relieve one of the duty to respect that agent.

B. LAWYERS AND ORIENTATION ETHICS

Above I have argued that employing an agent to conduct one's negotiations generally does not excuse the principal or the agent from the responsibilities of orientation ethics. Yet questions arise as to how this applies to lawyers, who are members of a distinct profession regulated by particular codes of professional ethical conduct. For example, if a lawyer is to be a zealous advocate for her client, might she be not only permitted but perhaps even required to see the other party to the negotiation merely as a means? And how should the profession as a whole handle the challenges of orientation e