Negotiating Under Ethical-Legal Clouds

Posted on 9/9/2019

Negotiating Under Ethical-Legal Clouds

Negotiations involving nations, businesses, unions, and various other entities and groups may occur when some of their leaders are under ethical-legal suspicion.   The recent case where the leadership of the United Auto Workers is working under a cloud of scandal illustrates this situation, but it is one that occurs in a variety of contexts.  We address the hazards associated with negotiating under such circumstances and what steps can be taken to mitigate potential problems. 


Three qualifying comments merit note.  First, we presume that leaders in these kinds of situations are innocent until proven guilty.  [In the case of the UAW, notwithstanding the recent raids on various current and former officials’ residences, no one in the current top leadership at the International has been charged formally with wrongdoing.]  Second, our analysis does not apply to situations in which the ethical and legal problems of leaders involve crimes so egregious as to necessitate immediate removal or involve situations in which the evidence appears overwhelmingly to point to guilt.  Third, we assume that the leaders in doubt possess the intellectual and physical capacity to withstand the scrutiny without losing their ability to concentrate on the negotiations. 


What are the possible dangers when ethical and legal clouds hang over the heads of the key leaders associated with a set of negotiations, especially where the stakes are high?  Five possibilities emerge: over-reaction, inflated expectations, undue cynicism, lack of concentration, and playing to the crowd. 




Leaders under ethical or legal challenge may over-react to the situation.  They may feel psychological pressure to exceed expectations and produce higher rates of return.  These pressures, in turn, may set themselves up for failure.  They may take positions or make demands during the course of a negotiation that cause the other side to recoil reflexively or to become repelled.  In either case, the chance of an agreement suffers.


Inflated Expectations


To succeed in a negotiation, particularly if it is necessary for a set of stakeholders to approve or ratify a “tentative” agreement, leaders must manage not only their own expectations (see above) but also those of their relevant constituencies.  If these constituencies harbor doubts about the leaders’ integrity or ability, given ethical or legal suspicions, then they may hold them to expectations beyond reach.  The bar of acceptable performance simply is set too high to have any reasonable chance of being met.  These inflated expectations may increase the leaders’ already high expectations, creating a vicious circle of attaining goals beyond reach.


Undue Cynicism


Just as there may be doubters among the leaders’ constituencies, there may be cynics on the other side at the negotiating table.  Negotiating counterparts or opponents may question the ability of the troubled leaders to deliver on promises made or to get agreements approved. 


Lack of Concentration


Many individuals find it difficult if not impossible to compartmentalize their lives so tightly that critical incidents in one aspect can be isolated so as not to affect the overall psychology of the person.  A president, for example, facing impeachment by the U.S. House of Representatives and subsequent trial by the U.S. Senate, may find it exceedingly difficult to concentrate on other matters which involve the national interest.  This inability to focus could harm important negotiations with foreign countries or with lawmakers on legislative issues apart from impeachment and trial.  Distractions are a potential problem in conducting business as usual.  Charges or suspicions of unethical or illegal conduct undoubtedly magnify the likelihood of distractions impairing performance.


Playing to the Crowd


Leaders, by definition, have followers, and they make appeals for support when the chips are down.  They may seek to ingratiate themselves with their base if under threat or challenge.  This is eminently understandable when the threats or challenges involve disagreements over strategy or tactic.  However, the whole tenor of discussion changes when doubts center on ethical or legal improprieties.  Rallying the troops, so to speak, in order to tighten a leaders’ slipping grip on an office may put these constituencies in undeserved jeopardy. 


What Can Be Done to Mitigate Adverse Effects?


In circumstances involving allegations of ethical or legal lapses, there are no quick fixes or easy solutions.  There are, however, several steps that affected leaders and their surrounding team of advisors can take to mitigate these adverse effects.


First, they need to build an especially strong team for the negotiations.  A designated member of this team should be capable of taking over should events take an unfortunate turn and force a leader’s resignation or sudden departure.  This is generally good advice in any major negotiation, but especially on point in these tenuous circumstances.


Second, the team should build independent checks into their deliberations to gauge the wisdom of important decisions on strategy and tactic.  The leaders and their team need to solicit critiques and invite scrutiny to ensure that they stay on an appropriate track and do not allow the pressures and emotions to set them on an unwise course. 


Third, leaders should be as transparent as possible with appropriate constituencies to avoid surprises and to engage them during the course of negotiations to ensure sufficient buy-in.  In this regard, they must regularly educate and communicate.  Listening is essential to ensuring buy-in and winning confidence in whatever negotiating posture emerges.  [Active listening is difficult to perform if one is preoccupied with personal problems.]


Finally, it is absolutely essential to encourage dissent on the negotiating team and to include participants who are willing to confront the leader and raise objections.  This is not the same as saying that the team should include troublemakers or chronic objectors whose sole purpose is to obfuscate or gain fame.  But a negotiating team of sycophants will invite even deeper doubts among relevant constituencies who are not going to be fooled by the obsequious.


*Marick F. Masters is a Professor of Business and Adjunct Professor of Political Science at Wayne State University.  He can be reached at


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