Lawyers' "game framing" of negotiations associated with lower moral character and less honesty

Lawyers have broad discretion in deciding how honestly to behave when negotiating. A new study surveyed U.S. lawyers to determine the degree to which honest disclosure is associated with their moral character and their tendency to frame negotiation in game-like terms, which the researchers called “game framing.”

The study found that the more lawyers viewed negotiation through a game frame—that is, as an adversarial context with arbitrary and artificial rules—the less willing they were to honestly disclose information to correct misimpressions by opposing counsel. Lawyers with higher levels of moral character were less likely to apply a game frame to their decisions and were more willing to negotiate honestly.

What the researchers say: “Professional rules of conduct for lawyers, such as those provided by the American Bar Association, generally prohibit outright lying about material facts or statements of the law, but the guidelines governing lawyers’ behavior do not offer clear-cut direction about when silence or failure to disclose information constitute misconduct,” explains the lead researcher. “Because lawyers have wide latitude in deciding whether to disclose information, their decisions are influenced by their own moral character and cognitive framing of the decisions.

“We suggest that the opposite of an ethical decision frame is not a business decision frame or a legal decision frame as has been discussed in prior work, but rather a game frame—a cognitive construal of negotiation as an adversarial process with arbitrary and artificial rules. Lawyers with lower levels of moral character are more likely to apply a game frame to their decisions, and greater game framing is associated with less willingness to honestly share information to correct opposing counsel’s misimpressions when negotiating.”

In this study, the research team surveyed 215 practicing lawyers from 24 states and the District of Columbia. Participants provided demographic and employment information, then responded to eight questions about their game framing of negotiation by indicating their agreement or disagreement with statements like, “Negotiation counterparties should be treated as adversaries rather than partner” and “How a person behaves in a negotiation does not reflect anything about their true character.”

They then responded to three vignettes based on actual events, each of which described a situation with an opportunity for honest disclosure during negotiation. Last, participants completed three personality scales that provided insight into their moral character.

The researchers found that lawyers with higher levels of moral character applied a game frame to negotiation to a lesser degree than did lawyers with lower levels of moral character, and they reported more willingness to disclose honest information to correct misimpressions held by counterparties. The more lawyers applied a game frame to negotiation, the less willing they were to disclose honest information.

The study marks the first investigation of game framing in negotiation. The findings suggest that focusing on game-like aspects of negotiation can induce a less moral mindset. To the extent that teaching law students to “think like a lawyer” encourages them to adopt a game frame of negotiation, such training may reduce the likelihood of honest disclosure. This, in turn, may temper lawyers’ effectiveness in claiming and creating value through negotiation.

“Our study invites caution and reflection about how law schools discuss and teach negotiation,” said the lead author. “It may be better to frame negotiation in ethical terms instead of gaming terms.”

So, what? This is an interesting study and the findings, I believe, are relevant to a number of areas besides law. Recent studies have vastly extended our knowledge of ethical and unethical behavior. What we know about moral character from recent research is:

• It depends on the level of testosterone—the more of the hormone the less the ethical standards
• Ethical and prosocial behavior are in large part genetic
• Male lawyers (and managers/leaders) under 35 tend to view their own needs as more important than those of others
• Men are more liable to be the instigators of immoral behavior (women more likely to be followers)
• Unethical behavior increases under stress and a depletion of the neurochemical glutamate (more snacks equals more ethics).