Gender and Attorney Negotiation Ethics

Abstract

Building on the authors' prior study of attorney negotiation ethics, this paper looks at the data through the lens of gender. The literature examining gender and ethics, both for attorneys and non-attorneys, finds either that women act more ethically than men or that there is no difference between the sexes. The findings in this study are more nuanced: while there was no difference in responses of men and women when asked to engage in a fraudulent negotiation strategy, there was a difference in response to a follow-up request to employ a more subtle form of the fraudulent negotiation strategy, a pure omission.

Unexpectedly, the men performed better than women. Additionally, the men performed better than women when asked whether the client’s initial request constituted a misrepresentation and whether a key fact was protected from disclosure by the Rules of Professional Conduct. Some of this difference correlated with the amount of respondent professional experience, but that does not explain the entire difference in the results. The survey instrument was not designed to investigate and uncover the factors that lead to the differences, thus it is not entirely clear why these gender differences exist. The article hypothesizes what these other factors may be, such as differences in the manner in which women and men organize information when making decisions, differences in how men and women respond in ambiguous ethical situations, and differences in how men and women advocate for others.

Keywords: negotiation, ethics, morals, gender, dispute resolution, conflict resolution, sex differences