Would you rather your lawyer get you a better deal or a worse deal? Do you care how? Should your lawyer? If the answer is yes, then Vivia Chen, the Careerist, says your lawyer should be a man.
It pains me to say this, but men and women are different—very different—in how they approach negotiation.
And guess what? Men are winning, winning, winning.
This comes from a study in the Harvard Business Review that men are more effective negotiators, but it comes with a hitch.
Do we lie to get what we want out of negotiations?
That depends, according to forthcoming research I conducted with Jason Pierce of the University of North Carolina, Greensborough. We found that the likelihood of engaging in unethical behavior during negotiation is related strongly to gender: men are more likely to act deceptively than women are.
The difference in bargaining behavior is linked to negotiators’ sense of competitiveness and empathy. In negotiations, men tend to embrace a competitive mode that motivates unethical behavior to get ahead, whereas women opt for an empathic approach, leading to less deceptive behavior.
See what she did there? Men lie because they’re unethical, and that’s how they get ahead, by cheating. Women, however, are too empathetic to be deceptive. But see what she failed to do there? Are negotiating positions “lies” or tactics? Is it unethical to be tactical in negotiations?
We lie. We lie when we say that the dress doesn’t make your butt look fat, or when we laugh at your jokes. But it’s not the sort of lie for which we’re ordinarily condemned, the “white lies” told to avoid needlessly hurting people’s feelings over something inconsequential.
Negotiations, in contrast, are consequential. There is someone who will benefit or suffer as a result of the outcome of negotiations. Whether one characterizes it as a game or a competition, winning on behalf of our client is what we’re there to do. Sure, there are limits, as we will not indulge in threatening the lives of babies to win and there may well come a point where the asymmetry in power or skill is too flagrant to swallow.
But in the usual arms-length negotiation, less-than-entirely-truthful assertions are part of the deal. Do we tell the other side our best and final offer up front and then walk away if it’s not accepted? Do we let the other side know that our guy is happy to take less than he’s offering, or do we make a face and respond, “come on, you can’t be serious with that low-ball offer.” No, of course it’s a lie. Our guy might be thrilled with the offer, but do we leave money on the table in the name of honesty?
The problem here isn’t a matter of negotiating tactics, or skills, or even empathy. The problem is that tough negotiation is characterized as “unethical.”
My interest in this research area grew partly out of my own experience as a woman in negotiation situations. As a young professor at the University of Washington, for example, I realized I was taking a passive approach to career advancement, waiting for promotions to come to me rather than asserting myself to create opportunity.
This revelation makes the characterization more understandable. The author, Leigh Thompson, a professor at the Kellogg School of Management at Northwestern University, came to the question because of her ineptitude at negotiating. Her personal issues naturally give rise to an “interest” in rationalizing them away, and so the hypothesis followed: If men do so much better in negotiations, it must be because they are doing something nefarious, while women are constrained by their inherent virtue.
Lying? Unethical? Those men. Ugh.
But how far would either gender go in trying to win a negotiation in which it might be tempting — yet unethical — to deceive?
There is no question raised, nor answer given, as to why deception in negotiations is unethical. It simply is, because she says so.
It’s one thing to get ahead by leaning in, speaking up, and asking for more, as women are increasingly encouraged to do. But it’s quite another to lie outright or misrepresent oneself in a negotiation.
Is it “quite another”? Says who, other than the author (and presumably those who share her feelings of inadequacy) whose negotiating skills came up short?
Substantial research shows that men set lower ethical standards for themselves, including in bargaining situations: they lie more frequently in negotiation than female counterparts, are more likely to believe misrepresentation is acceptable, and endorse seeking negotiation-related information in unscrupulous ways (such as looking at confidential reports not intended for them).
Well, she’s got me there, as I’m a man and I, as she well anticipates, am of the view that misrepresentation in negotiations is acceptable. If I was negotiating an employment contract at a university, I wouldn’t have the slightest qualm in saying that if they didn’t do better, I would be off to another college in a flash. And if they were foolish enough to leave a confidential report where I could see it, I would absolutely look. And then use it. And then win.
But none of this implicates ethics at all, any more than typical puffery in sales (NEW AND IMPROVED!!!), and this is where the entirety of the approach is nonsensical. Negotiations are, by definition, a game of chicken, a competition of persuasion. It’s not testimony under oath, and there is no fiduciary duty to be scrupulously honest with the people on the other side of the table trying to burn you as hard as they can. Both sides know it’s a negotiation. Both sides know the game. Both sides are trying to win. That’s the nature of negotiation.
The flip side of men being cheaters is that women are virtuous, guided by their empathy. Except that too fails to bear out under scrutiny. When you’re negotiating on behalf of your client, who is more deserving of your empathy, the person for whom the other side is negotiating or the person relying on you to get them the best deal? There is nothing empathetic about burning your own client because you cry sad tears of ethics for the sake of your adversary.
If a woman can’t do this (and, I note, most female lawyers I’ve negotiated with are every bit as good as males when it comes to being “unethical” on behalf of their client), then they don’t belong at the table. To do less for your client is malpractice, no matter how conveniently you characterize your failings or the other guy’s strengths.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
Robert Heinlein.
“I don’t trust a man who talks about ethics when he is picking my pocket. But if he is acting in his own self-interest and says so, I have usually been able to work out some way to do business with him.”
Ha. Can you imagine that woman putting that into practice in real life?
SALESPERSON: “What is the absolute highest price you are willing to pay for this car?”
HONEST PROFESSOR: “$3,000 over retail.”
OPPOSING COUNSEL: “If you don’t drop your suit, my client will file bankruptcy and you’ll get nothing.”
HONEST PROFESSOR: “OK, then, I guess I’m wasting my time here; let’s dismiss my case with prejudice.”
I wish I had her as OC.
Exactly what she would expect a man to say.
Wow that’s just so incredibly inaccurate. In my neck of the woods women are now the majority of public defenders and prosecutors and they are bad ass. Even before that I preferred male attorneys because they were easier to get along with. Author clearly didn’t realize only certain people self select for trial work.
Oh cool, a teaching opportunity! When your point relies on your experience, and therefore you credibility, it behooves you to first establish your credibility, or at the very least not have a reputation of incredibility. It may well be that women PDs and prosecutors are “bad ass,” whatever that word is intended to mean among baby lawyers, but your saying so doesn’t make it so because you’ve undermined your credibility over and over by your shallow, infantile grasp of reality here.
If you want adults to believe you, you have to work much harder to let go of your ideological bias and try to employ facts and reason. Maybe then people will give a shit about your conclusions and not see them as the childish views of an unduly passionate kid.
Chen is wrong to extrapolate the study to negotiations women perform as professionals. Studies have shown that women are better at negotiating for others than negotiating for themselves and equal to or better than men in that context. So when women are losing at negotiating, they are only hurting themselves. Which is unfortunate for women, but not any sort of professional competence concern.
Chen may have taken the study out of its lane, but the HBR study doesn’t bear out your assertion at all. There’s a lot of “women are better than men” claims floating around, mostly garbage claims that were manufactured for the sake of promoting a feminist fiction that fail miserably under the slightest scrutiny. But the idea that individuals, regardless of gender, can be good or bad, or in between, at such things seems to fly in the face of the belief that everything is about gender. Maybe it’s not about gender, but negotiating skills.
I hesitated to include the “women better than men” part of the study as I am of the same opinion of you, that men and women can and are just as skilled and successful (or unskilled and unsuccessful) at negotiating regardless of gender. However, you say the HBR doesn’t bear out my assertion, but HBR doesn’t deal with the issue of negotiating for others at all. In each experiment, the individuals were negotiating for benefits for themselves. My point is simply that even if the HBR study is true and women are less successful negotiating for themselves, that does not mean they are less successful at negotiating for others for example in the legal context.
Not only do I agree with you, but it’s been my experience as well. But then, most of my experience with female negotiators is with trial lawyers, who tend not to be shrinking violets.
“An ethical person knows they should not cheat on their spouse,
a moral person will not cheat on their spouse.”
Yay team ethics!
Reminds me of the MPREs lawyers take as part of the bar exam. We know ethics. See how well that works?