Staying on the Right Side: Navigating ethical issues in negotiation and settlement

Using scenarios drawn from real-life situations, experienced labour and employment lawyers will provide guidance on a range of ethical issues that arise in negotiation and settlement, including:

• Does the level of candour required in negotiations differ from that required in litigation? If so, how?
• Does the level of openness and honesty required in attempting to settle a grievance differ from the level of candour required in collective bargaining or in negotiating contracts of employment?
• Is it acceptable to raise the prospect of a strike or lockout if that prospect is very unlikely?
• Is posturing the same as lying? If not, how are they different?
• Is it ethical to bluff the value of a case to a mediator, in the hopes of achieving a favourable settlement? What about misstating the limit of settlement authority at mediation? Is it ever ethical to “low ball” your own client?
• When, if ever, is it ethical to threaten or institute proceedings in order to gain leverage?
• When a lawyer is engaged in settlement discussions or in mediation on behalf of an employer or union, what is the lawyer’s duty to disclose information to the client and to the grievor?
• What professional obligations must a lawyer bear in mind when a grievor refuses to accept a reasonable settlement?
• When should a union lawyer advise a grievor to get independent advice on a settlement proposal?