RESULTS DRIVEN ETHICS IN ADR (NEGOTIATIONS AND MEDIATIONS) Presented by Donald L. Swanson

RESULTS DRIVEN Nebraska Rules of Professional Conduct  § Truthfulness in Statements to Others  In the course of representing a client a lawyer shall not knowingly: a. make a false statement of material fact or law to a third person; or b. fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

RESULTS DRIVEN Nebraska Rules of Professional Conduct § Confidentiality of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b) (b)A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary... [to prevent crime, bodily harm, etc.].

RESULTS DRIVEN Nebraska Rules of Professional Conduct  § – from Comment [1] 1. A lawyer is required to be truthful when dealing with others on a client's behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. 2. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. 3. For dishonest conduct that does not amount to a false statement or for misrepresentations by a lawyer other than in the course of representing a client, see Rule 8.4.

RESULTS DRIVEN Nebraska Rules of Professional Conduct § Misconduct It is professional misconduct for a lawyer to: … (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentati on; … From Comment [2] Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust or serious interference with the administration of justice are in that category. Not in that category: offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. From Comment [4] A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists.

RESULTS DRIVEN Nebraska Rules of Professional Conduct  § – from Comment [2] This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party's intentions as to an acceptable settlement of a claim are ordinarily in this category…. Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation. (Bold face added for emphasis). --Attorney explanation: --Ethics textbook: --Survivor:

RESULTS DRIVEN Tortious Misrepresentation  To state a claim for fraudulent misrepresentation, a plaintiff must allege (1) that a representation was made; (2) that the representation was false; (3) that when made, the representation was known to be false or made recklessly without knowledge of its truth and as a positive assertion; (4) that the representation was made with the intention that the plaintiff should rely on it; (5) that the plaintiff did so rely on it; and (6) that the plaintiff suffered damage as a result.  Negligent misrepresentation has essentially the same elements as fraudulent misrepresentation with the exception of the defendant’s mental state. Zawaideh, M.D. v. Nebraska Dep’t of Health, 285 Neb. 48, 825 N.W. 2d 204 (2013).

RESULTS DRIVEN Studies on cheating Part 1  Students who read the honor code – less likely to cheat than those who didn’t  Students who read the honor code and still cheat – less likely to remember code details afterwards – “motivated forgetting”  Students who sign the honor code – almost no one cheats Application for negotiations and mediations???

RESULTS DRIVEN Studies on cheating Part 2  Cost-benefit-analysis  Someone who perceives the likelihood of getting caught as very low—is highly likely to cheat  Someone who perceives the likelihood of getting caught as very high—is highly unlikely to cheat Application for negotiations and mediations???

RESULTS DRIVEN Studies on cheating Part 3  When an obvious cheater is seen cheating (actors wearing a t-shirt: blank t-shirt or shirt of a rival school)  More students cheated when the actor wore a plain t-shirt – i.e., was one-of-the-crowd  When cheating actor wore a rival school’s t- shirt, fewer students cheated  Took moral superiority posture Application for negotiations and mediations???

RESULTS DRIVEN Studies on cheating Part 4  In one condition, the buyer’s agents were told they had a 25% chance of gaining the property and thus earning a 3% commission; in another condition, the buyer’s agents were told they faced a 75% chance of losing the property and the commission. In subsequent negotiations with the seller’s agents, buyer’s agents presented with a 75% chance of loss were less honest about the developer’s intentions than were buyer’s agents facing a 25% chance of gain Application for negotiations and mediations???

RESULTS DRIVEN Studies on conflict  Studies on conflict within a team found that:  Conflicts centered on task and process issues can produce active positive emotions (e.g., attentive, interested, excited).  Conflicts centered on relationship issues can produce negative emotions (e.g., frustrated, worn out, aggravated). Application for negotiations and mediations???