Conclusion
It is not only in England and Wales that the incoherence of the lawyer’s role in litigation and settlement has been noted.125 The existence of different kinds of negotiating problems and different defensible models of negotiation complicates the task of defining an appropriate ethic of negotiation for lawyers.
To suggest that an approach may be ethical in some circumstances but not others is problematic. Distributive bargaining, with either loss or gain for each party, may produce favourable outcomes for one side. In contrast, a successful negotiation involving integrative features depends on maximising the benefit of both parties.Serving the best interests of the client suggests that competence in different styles of negotiation is required unless, as many have suggested, lawyers commit themselves to a principled bargaining approach in all circumstances. The advantage of this is that some methods such as principled negotiation support collegial obligations and expectations of integrity more effectively than more adversarial styles. The problem arises when clients demand adversarial lawyers and one-sided gains.
If no method of negotiation is promoted as ethical, it falls to general rules of conduct to regulate the bargaining process. It can be argued that obligations not to take unfair advantage of, or not to mislead opponents, apply to some bargaining behaviour. It is doubtful that the existence of such general obligations can, without more, sustain an ethical negotiation culture, or convey to participants what to expect from others.
125 Condlin (n 20).