The Harvard PONS blog posted (on February 10, 2020) a thought- provoking article by Katie Shonk entitled “Moral Leadership: Do Women Negotiate More Ethically than Men?”

The answer is that generally, “yes”, “…women are generally less accepting of unethical behavior than men are and tend to behave more ethically than men in a wide variety of contexts….” (Id.)

Citing a study by Michael P Haselhuhn and Elaine M. Wong of the University of California, Riverside, the article notes that “…25% of men used deception to negotiate a deal as compared with only 11% of women.” (Id).

Referencing another study by Jessica A. Kennedy of Vanderbilt University, Laura J. Kray of the University of California at Berkeley and Gilliam Ku of the London Business School that looked more closely at the “why” behind such differences,  those  researchers found:

As compared with men, women are more likely to be socialized to view themselves as interdependent with others and to be more attuned to relationships and others’ emotions. Generally speaking, men are socialized to define themselves as more independent and less reliant on others.

Consequently, Kennedy, Kray, and Ku hypothesized that women internalize morality into their identities more strongly than men do. “Because being moral helps people build and maintain relationships,” Kennedy and her colleagues write, “women are likely to adopt goals and values that promote the welfare of others. Over time, these goals and values may translate into identifying strongly as a moral person.” Because people with stronger moral identities tend to behave more ethically, the researchers hypothesized that women also would be more ethical negotiators. (Id.)

However, the researchers found this to be true only up to a point.   In a different experiment, the participants pretended they were hiring managers for a job that was to last only six months. At issue was whether the female (as opposed to the male) participants (aka “hiring managers”) would be honest and forthcoming about this fact when interviewing job candidates. The findings were that women were indeed more honest about it. ( Id.)

The experiment was then changed slightly to now include a $100 incentive award for negotiating the lowest salary. This new “rule” changed the dynamic considerably : “… women were just as likely as men to behave unethically.” (Id.)

In conclusion,

Overall, the findings suggest that women may be socialized to be more ethical negotiators than men. However, when financial incentives to lie or cheat loom large, women may be just as tempted as men to focus on maximizing profit at the expense of their morality. (Id.)

 Turning to negotiations during mediation, the implications of this study are clear: women may be more ethical in negotiating or at least will not be as deceptive as men EXCEPT when there is a financial incentive for them built into the process, such as attorney fees.  Then, according to this study, women are liable to use deceptive tactics to the same extent as men.  “… Women may be just as tempted as men to focus on maximizing profit at the expense of their morality.” (Id.)

Given that lawyers are bound by the Professional Rules of Conduct which include, among other things that lawyers should not engage in misrepresentation, I question the accuracy of this finding as it might apply to lawyers. Granted lawyers will engage in “puffery” which is okay to do. The issue is that there is a fine line leading to a slippery  slope between puffing and misrepresentation.  Will women lawyers engage in moral disengagement- ( “…the extent to which they rational[ize} away unethical decisions-…” (Id.)) to convince themselves that they are engaging in ethical negotiations during a mediation?  Who knows?

It does pose an interesting dilemma.

… Just something to think about.

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