Morality in Context W. Edelstein and G. Nunner-Winkler (Editors) © 2005 Published by Elsevier B.V.

9 Moral Resilience—^The Unhappy Moralist

Fritz K. Oser and Roland Reichenbach

Moral Decision Making Under Pressure

One major problem of morality in context concerns the form and amount of pressure that an individual experiences v^hen deciding issues that include both effectiveness de­mands and moral obligations. In fact, true morality involves dealing v^ith the risk of having to decide against external or internal expectations. The pressure can come from internalized performance standards or from the structure of the social, economical, or political situation that demands a nonmoral type of decision—for example, oriented tov^ard profit or production outcomes. This is the case when a firm demands that a salesman sells products that he v^ould never buy himself Another example may be civ­il disobedience in a political situation in v^hich a dictatorial system demands obedi­ence to a command to oppress or kill innocent people.

When v e talk about moral competence in a Kohlbergian sense, v e mean a judg­ment that is given in a situation that is free of time constraints, pressure, or coercion. Rarely, moral performance in real-life decision-making situations matches the complete moral competence. In addition, morality in context is always a decision-making process requiring an emotional balancing of two goods. We may say that it is easier not to be moral and just listen to what brings success. We may say that it is a sign of prudence not to expose oneself to danger. It is probably also easier to discuss in a neutral and open situation. However, real biographical or historical moral decision making and action al­ways requires something like moral courage, or the will to stand up against unjustified expectations and pressure. There is no relevant moral decision making without stress.

But who is immune against pressure from outside? Who can resist if one is only required to close an eye if a lot of money is at stake? Who can resist an offer when this would be perceived as a refusal of cooperation, and an oppositional stance? Who wants to lose a case in a trial, when winning presumes only a "marginal" denial of moral claims? In this chapter, subjects who resist internal or external pressure for morality's sake are called morally resilient. Moral resilience is manifested in a situation in which

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someone accepts the risk to be punished, to forfeit winning a case, to be unsuccessful, and so forth, because of moral considerations.

In this contribution, we would like to discuss cases and dimensions of moral resil­ience. We would like to show that in particular negotiation, skills often interfere with the moral point of view, and that moral resilience can easily be demonstrated in nego­tiations.

Forms of Moral Resilience

Moral resilience refers (a) to resistance against obtaining or accepting a good when there is indication that the procurement of that good is connected to something neg­ative, (b) to resistance against public pressure even when acting in favor of weak or persecuted people, leading probably to the consequence that the action may damage the moral subject, and (c) not bearing witness against others when this testimony only yields an advantage to the person in possession of relevant evidence in a case, but not for the person whose destiny is at stake. Resilience in these forms represents cases of situated morality. It responds to conditions, which more than any abstract or artificial dilemma, contains high complexity, restriction of time, necessary decision making (omissions cannot be neutral), and often secrecy of the act (the probability of a legal suit being a subordinated consideration).

Psychologically, moral resilience is a performance condition (as opposed to moral competence). It depends, besides the restrictions mentioned, on a variety of emotional variables, such as fear of discrimination, fear of exclusion, pressure from a related group, loss of relationships, or fear of defamation and punishment of relatives. But not only this is decisive: Often, the actor is indebted to persons who are concerned by this decision. An example may be: How can someone testify against his or her employer if the testimony can jeopardize not only his or her own employment but also the jobs of an entire team, and so forth.

One question immediately arising touches on the distinction between moral cour­age and moral resilience. These two concepts overlap, but can nevertheless be differ­entiated: Moral courage relates to the transformation of a moral decision into a concrete act, whereas moral resilience serves the inhibition of an immoral act which would represent great advantage to the moral subject.

In this chapter, we wish to discuss the issue of moral resilience in view of a special case—the negotiation of divorce. This obviously means restricting the range of the problem. On the other hand, we hope to ascertain ecological validity of the construct by focusing the argumentation. Accordingly, we refer to only one form of moral resil­ience—^while knowing that the other forms mentioned earlier are of equal importance.

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Resilience in the Negotiation Process? Resistance to the Maximization Demand

We have stated that the negotiation process serves well to demonstrate the balancing of two forces, a success-oriented process and a morally founded process. The ques­tion is why some persons in a negotiation context resist the demand to win at all costs because of moral considerations, whereas others do not. Negotiating the best for your own prosperity is a psychological and economic demand. It gives the nego­tiation process meaning. Hundreds of "how to do" books give advice on how a ne­gotiator can achieve the best solution for himself. No one can successfully negotiate without bearing in mind the "best alternative to a negotiated agreement" (the BAT-NA; see Fisher & Ury, 1981). The concept of BATNA implies that both protagonists must transform the (broader) zone of negotiation into a zone of agreement where both parties receive the possibility of finding the best available solution. The best so­lution must be better than a certain range of minimal gain. There is no negotiation without the willingness to increase, improve, or enhance economic or psychological goods.

This imperative is so strong that anybody seriously engaged in a negotiating pro­cedure must comply with it. Negotiating, as an interactive process, implies that two or more claims relative to the same interests and implying the same stakes need to be balanced such that both parties achieve the optimum. Experts deal skillfully with both the bargaining process and its results. They may differentiate between persisting inter­ests and momentary positions, understand the function of each phase in the negotia­tion process (cf Gulliver, 1979), and use sophisticated tactics very effectively (c£ Birkenbihl, 1990, p. 182).

What is problematic in this.' Frequently, the skill of the experts contradicts moral claims—especially if experts profit from the weakness of the adversary, misinform the other side, or, above all, hide information that may weaken or damage their own position. Because a good negotiator is supposed to win, he or she might be tempted to use every means in order to reach the goal. Often, good negotiators appear to be paralyzed by the goal, and, especially if no legal consequences are to be feared, engage in a "power game" to the very extent consistent with its purpose. Negotiation theories (or courses) rarely deal with morality; it is supposed that competent negotiations automatically lead to transparent consequences, or that success is good in itself Per­haps there is no other field of human interaction that implies so strongly that success is morally good.

This is the reason why negotiations are prototypical situations for analyzing the hidden immorality of acts that are legally accepted and imply no consequences be­yond, perhaps, a bad conscience. Many examples of this can be found in the literature.

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In his book "Livro do Desassossego," the Portuguese noveUst Fernando Pessoa de­scribes an "immoral" act where the protagonist legitimately insists on his legal rights, but, at the same time, neglects his moral duty:

Chef Vasques struck today a bargain, which ruins a sick man and his family. During the bargaining he completely forgot that a human being faced him, he only saw the com­mercial adversary. After he had signed, his moral sensibilit)^ caught up with him. Of course, this was after the contract was signed; if it had occurred before the signature, the bargain would not have been signed. "I am sorry for this fellow," he said to me. "He is doomed to poverty." Then he lit a cigar. And he added: "In any case, if he needs some­thing"—he thought about alms—"I won't forget that I received many ten thousand Es-cudos, thanks to him."—Chef Vasques is not a monster: he is a man of action. The one who looses in this game can surely count on alms because Vasques is a gracious man.

This is a good example of the paralyzing force: "... he only saw the commercial adver­sary," and this is also a good paradigm of consequences following the action: "... if he needs something—he thought about alms." There is tacit knowledge that the protag­onists course of action was wrong, but he cannot reverse the procedure.

Now the question of moral resilience comes into play. Vasques is not a monster, but he does not resist the inner pressure of his right and duty to win. He is fascinated by the bargain, knowing, but not actualizing that there are other responsibilities, and thus pursues the end as if in a frenzy. Another reaction could have been to introduce a new factor into the negotiation situation: to win while entertaining the moderating consid­eration that the sick man should be able to survive. Obviously, this would complicate the negotiation process because within rational choice or economic calculations there is no place for sociomoral thinking and altruistic emotions. In general, this is perceived as relevant in every textbook of economics and in all economic contracts: We cannot see why a profit can ever be problematic with respect to the logic of moral sentiments.

Explanations of Moral Resilience

The case of Vasques raises the question why some people care about and respect the logic of morality, while others do not. What makes Vasques unresponsive to the needs of others, and what generates resilience in others? A simple answer may be that Vasques exhibits low-level negotiation strategies, as they are described by Selman (1980, p. 51). Higher level strategies are characterized by an attempt to achieve and respect mutuality. This calls for a state where both parties must be satisfied with the balance established through the contract. However, a counterargument comes to mind immediately: Mutuality in negotiations does not equal moral reversibility, it simply follows a cooperative win maximization logic. The sick man did agree to the transaction because he thought that he would profit from the bargain himself. More-

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over, at least in retrospective Vasques is aware that the balance was not well-equilibrat­ed. Thus, we cannot assume that he is at a lower stage of negotiation capability.

A second type of explanation can be taken from Werner and Smith (1989) who clustered major protective factors in the following three categories: (a) dispositional attributes of the person, (b) affective ties within close relationships, and (c) external support systems which are connected to schools or committees. We do not detail here findings related to the three components (see also Werner, 1997). But we suggest that these factors relate to the general welfare of a person or to successful development rather than to resilience in a strict moral sense. We would translate these factors in the following way: Examples of personal factors are a stage of moral judgment, moral self-efficacy beliefs, and moral sensitivity (see Nunner-Winkler, 1997). As a relationship factor, the concept of responsibility may be helpful. While the concept used by Werner is designed to serve as an indicator in the context of development in view of the question of moral resilience, we look to the norms of the negotiation culture and the unique situation in which a person decides to take (or not to take) into consider­ation the challenge of care, truthfulness, or justice, knowing that the outcome of the process may be disadvantageous or even disastrous.

We propose that there is a combination of internal and external forces that lead a subject in a situation to take a moral point of view or to abstain from it. In the negative case, this combination of factors is as follows: On the one hand, there is a capacity to screen knowledge of the consequences for the other. On the other hand, however, there is a concentration on ones own purposes as a game in which winning generates good feelings. The situational stress transforms itself into thrill; the rules of the game lead to what we might call the "immoral flow." The situation resembles the blindness of a mountaineer who is eagerly approaching the summit and ignores the danger of a sudden change of weather. We might speak of cognitively desired moral blindness. The act of closing ones moral mind refers to the willingness to reduce complexity to fit the rules that determine the game. Thus, the question at stake is not one of moral stage, moral sensitivity, or moral knowledge, but rather of reducing the procedure in a game situa­tion to what is perceived as essential: the game itself In other words, the desire to win overrules the moral duty not to hurt others and to take advantage of their weakness.

In contrast, persons showing moral resilience appear to be able to resist profession­al and nonprofessional pressures and the desire to succeed under all circumstances, and even seem to be able to resist the temptation to prevail in a negotiation that is im­portant to them. Thus, moral resilience has to be distinguished from the moral point of view (Baier, 1974). The question is not, "What shall I do?" but rather, "Can I live up to my convictions.''" or "Can I resist the temptation (to be the best, to be successful, to be powerful ...)?" Thinking in terms of the moral point of view, we usually first try to define the moral problem in question, and then ask ourselves whether there is a

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moral principle or some moral standard that can be applied to the situation in order to solve the problem. However, in "performative situations," the question is rather how we give voice to the moral problem, and how we do that if an important disad­vantage appears to arise for us if we act this way.

Resilience With Respect to Hiding Important Information

An especially illuminating case is the instance of one party involved in the negotiation of having access to confidential information that would weaken their position if pub­licly known. Whereas no one would expect that the informed party will communicate the information in question to the disadvantaged opposing party so that the latter can work out a better deal, the question remains what to do with the information. This is a case of applied morality. The main point here is that the context enhances the actors desire to win, and not to reflect on morality. The context obstructs the moral aspect of the process. There is no duty not to win or not to push the other side to the end of their financial rope instead of giving in, even if some institutions tell us not to behave in such immoral ways and not to decide unresponsively.

Are we discussing a nonbinding and merely postulated duty? Indeed, one can act as if the concealed information did not exist, and no judge would legally sanction such behavior. However, if one considers the possible consequences, the question arises whether a binding duty exists although it cannot be enforced by a law court. This makes the issue exceptionally interesting.

The philosopher Birnbacher (1995, p. 186), in an impressive article, tries to show that Hare is wrong when he argues in terms of this two-level model of action and omission to the effect that conformity reigns between "intuitive principles" that are pragmatically justifiable, but erroneous if prevailing "intuitions." The charge is that Hare exaggerates the degree of conformity between the two levels in actual cases. This implies ''not to accept the intuitive claim that the person responsible for an omission carries less responsibility for the consequences than a person who does act carries for the consequences of that act" (Birnbacher, 1995, p. 186). The reason for that state­ment is the close structural similarity of both behaviors.

At first blush, the weakness of Birnbacher's analysis is manifested by the fact that he introduces a counterexample for each example of act or omission, thereby contra­dicting the principle just established. We illustrate this byway of two of his cases:

Birnbacher takes the example of lack of benevolence. Take a case where collecting a debt from a needy debtor is in a situation where the creditor could do without that money. An omission to collect the debt would have been morally preferable. Another example, this time for an omission, is the failure to observe the prohibition to look at

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Eurydice. In this case, acting as demanded would have been morally preferable, —One gets the impression that an omission is morally weightier (positively or negatively) than acting in cases where the well-being of a person is central, but contrary to a favorable end for the opposing party. Hence, one should discuss each case on its merits without quick generalization.

A concrete example of the possibility to hide important information in negotia­tion situations occurs regularly in our courses on negotiation: the so-called Winter versus Winter divorce case. The aim of these courses is to practice and reflect on com­plex negotiation cases. The participants are mainly managers and officials at the higher echelons of nonprofit organizations and public administration. During the first two days, we work on cases without any particular moral framework; the main goal is to understand the conditions of successful negotiation. The experience of maneuvers in simulated cases is completed by an introduction into the psychology of negotiation: Participants become familiar with theories regarding the structure and process of ne­gotiation. The "moral" case, the divorce story, appears on the program only on the third day. This case was developed and first used by See (1987).

The case concerns a divorce settlement of a couple—Paul and Barbara Winter— with five children. They had been married for 15 years, Paul is a civil servant, an officer in the police, earning about 86,000 Swiss francs per year. His work is stressful, and he is on duty mostly in night shifts, Paul and Barbara own a house and two cars; recently, Barbara has inherited some money. For some time, Barbara has tended to neglect her three younger children. She has repeatedly gone to town with her two older daughters, met a 19-year-old tennis player, flirted with him, presumably has an intimate relation­ship with him, and was "caught" with him in Paul's car by the police, and so forth. Paul confiscated Barbaras key to his car and threw her out of the house. She left her family, and, meanwhile, she has not seen her children for weeks. Moreover, she has given up her job as a preschool teacher.

The negotiations take place between the attorneys of husband and wife. It is out of the question that Barbara and Paul, the two parties, might be reconciled. The deci­sion to divorce is definitive. Each side attempts to gain as many advantages as possible; at the same time, the children's well-being needs to be considered.

The schedule of the course involves the following steps: (a) The presentation of the case and affiliation of the participants with the parties concerned; in each of several groups, two play the role of lawyers representing Barbara, and two are assigned the roles of Paul's attorneys, (b) The distribution of information sheets; each group re­ceives a general description of the case, and each pair of "lawyers" is provided with confidential information regarding the person represented by them, (c) Each group prepares for the negotiation with mindmaps and strategic plans, (d) The negotiation starts. Typically, it lasts between two and three hours.

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From the perspective of moral resilience, the key issue is that Barbaras attorneys have very negative information about her, whereas Pauls lawyers work with "normal" expectable information consistent with the picture of a loving husband and father, and a good and diligent citizen.

In contrast, the confidential information about Barbara reads like this:

Confidential information for Barbaras attorneys

You have instructed one of your most capable staff to collect information on Barbara. He visits family members and neighbors to inquire about her reputa­tion. The consensus seems to be that she behaves like a teenager, hanging out with young people, and flirting with the former boyfriend of her own daughter! Her behavior is mostly offending. Asked who should keep the children, most persons thought that Paul would take better care of them as he is conscious of his responsibilities and dependable. Barbara said: "Well, the people, the people in this little place in the middle of nowhere, they pounce on everybody. And Paul is really boring. My God, he is a dead loss! And such a sap wants to be called a policeman.—The children, j^s I want them. I am their best friend. They need me, I love them. How could Paul look after them?"

Here are the childrens most important comments:

Daniel (3 years): "I want my mum to come back." Joseph (6 years): "I love Mummy. But she leaves me alone too often; then I have only Danny to play with. She goes out with Laura and Celine. She only takes me shopping. When I wet my bed, she beats me in the morning." Peter (10 years): "I love Mummy and Daddy. If I have to choose, I want to stay with Daddy. He cares for us and in the evening he reads a story to me. When Mummy left Daniel and Joseph to themselves, I visited my friends. When Mummy brought her friends along, we had to stay in our rooms until they had left again." Laura (13 years): "I love my Mummy, but I no longer want to stay with her. She behaves like a friend, not like a real mother. She does not take care of her chil­dren, above all of my little brothers. Frequently, she went out with Celine and myself while Daniel and Joseph stayed at home—and Daddy slept upstairs." Celine (14 years): "If my parents get divorced, I want to stay with my father. I like my mother, as we all do, but I believe that something is not quite right with her; she has behaved rather strangely for some time. In case the Judge orders me to stay with my mother, I will run away."

Barbara Winter wants to gain custody of the children, or at least of her daughters, to whom she feels closer.

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The research question we ask is this: How do Barbaras "attorneys" behave? What do they do with their information? Which moral standards do they apply in order to close the case?

Procedural Indignations The Truth is Naked

The course procedure gives insight into what happens from the moral point of view concerning both parties: After the closing of the negotiation, participants present their settlement, that is, the final result of the negotiation (e.g., all children go to Barbara, Paul pays such and such amount of maintenance and loses the house; he can keep one car, etc. Or, the two older girls go to Barbara, the three younger children to Paul, etc.). As we will see below, all combinations are possible. Only after the exchange of the re­sults, the course participants get to know the confidential information that the oppo­site party had been provided with.

This is the one moment during our course where we can expect uproar and emo­tion among participants. Inevitably, Pauls attorneys will react angrily. They seem to explode emotionally, calling the representatives of the other party liars and cheaters. In sum, they express that they would have negotiated quite differently if they had been provided with only part of the information that was accessible to Barbaras attorneys. Paul's attorneys blame the other party for being immoral, for rationalizing their dirty maneuvers, for cheating, and for jeopardizing the children's future—all in order to gain the custody of at least some of the children for Barbara. Now, of course, a fierce discussion about keeping back information and other dirty tricks in negotiations, about the immoral behavior of attorneys in general, and about the general state of civil society takes place. Often, Barbara's attorneys reply with the argument that all this in­formation could have been obtained through cross-examination if only the other party had been interested and shown some resolve.

At this point, we must interrupt the description of our subjects' reactions and re­flect upon our role as experimenters in this game. Of course, this is only a simulation of real-life situations and behaviors, and it refers to situated morality. Situated morality (like situated learning) captures dimensions of reality that may, or may not, represent typical features. Reality, in our case, can be constructed in such a way that a decision to conceal the truth, to refuse giving everybody the same share, or to be equally helpful to everyone can be considered more moral than the opposite line of action. Given the instruction to work for the client's interests, the pathway to a moral world is not unidirectional in this situation. We cannot say that Barbara's lawyers are immoral because they took the role of defending an irresponsible mother. This would be an oversimplified and rigoristic interpretation. The participants do in the

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course what lawyers do all the time (defend their clients' interests), only less profes­sionally and with the awareness of playing a part in a game with nobody actually meeting his or her fate. What we try to show is the emergence of impartiality in an unfair and chaotic field of interaction. Supressing and ignoring information in the battle, or judging this to be a reason for deploying moderate and cooperative nego­tiation strategies is only one aspect, but maybe an aspect that gives one a cue to the situation.

One question that arises concerns the effects that our work with the participants during the first two days of the course may have on their behavior in this simulation. Do Barbaras attorneys bargain hard to obtain for her the custody of her children be­cause we have just put the will to be successful in a negotiation into their minds? Be­cause we have stimulated the desire to win, and thereby—implicitly—to neglect moral norms.'* Could it be true that the participants do not react "normally" in the moral domain, but display a desensitized moral conscience as a consequence of the first phase of the course?

The opposite hypothesis would be that we witness a real-life phenomenon in that morality is not found on the surface of rationality, but needs to be dug up from deep down within the different layers of a person's diverse interests. This is a moral dimen­sion to which hardly anyone has paid attention so far: This concerns the hiding of morality within processes of communication, particularly in the area of negotiating and decision making. To our knowledge, only one relevant volume in education has dealt with the question, "The Moral Life of Schools" by Jackson, Boostrom & Hansen (1993). These authors developed the concept of the "moral well-being of students" and demonstrated that (a) literally every decision made by a teacher has a moral com­ponent, and (b) that in schools many teachers do "more harm than good to their stu­dents" (p. XVII).

Their tendency to devaluate morality behind the constraints of a broken interac­tion, such as a divorce, shows that most professionals neither act nor reason according to their moral competence, but act according to a morality implicit in bargaining and profit maximization. Only if a person distances herself from the priority of profit max­imization and reflects critically upon what is happening, can she uncover the hidden aspects of the tactics used and unveil the moral implications. Only then can the drive toward success at any price be constrained and opposed. The most interesting aspect of morality consists in the fact that the crucial test can only be made when it needs to be dealt with under pressure, never in a context free of coercion.

What is at stake is the descriptive content of real moral acts, counterclaims, and justifications in situations where differences in the psychological structure no longer suffice for an explanation of such contents. Oesterdiekhoff (1998) in contrast with Weber and Elias has shown that a description of moral structures and personality char-

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acteristics cannot be justified solely by a person's actual behavior and cognitions. It re­mains to be shown that a sociology of behavior can elucidate more than actual situations involving hidden morality. This is because the many layers of a situation prohibit a quick and precise inference from the execution of an act and its justification to a person's moral base structure; further, knowledge of the moral structure so far does not permit to conclude as to the moral spirit of the times.

Our case not only illustrates procedurally how persons in a professional negotia­tion conceal morally damaging information; rather we demonstrate the construction of a moral equilibrium between parties that often shows a strange characteristic: Not revealing potentially damaging information leads to life-based justifications for doing what prima facie appears to be wrong. The potentially damaging information is dis­guised in order not to endanger a successful outcome of the negotiation, the latter be­ing considered the higher value; but it is also disguised for the sake of a presumedly disturbed person whose attorneys put more weight on psychology and sociology tl>an on morality. The moral content is at stake.

If Barbaras attorneys had revealed the results of their detective work, they could no longer maintain the position that she, as the mother, should obtain custody of the children. In reality, she does not want the children because they get in the way of her pursuits. However, she has to pretend that she wants them because only then can she play her social role and avoid losing face. The case draws its strength from the fact that one group has "normal" information about a client, but the other has only negative material relative to the client's moral stature, and thus what we have is a disequilibrium of moral values. On the material level, the main question remains: What are the con­sequences for the children if the negotiations are "successful," and the client receives her "rightful" share of the custody of the children.''

There is one group of participants who argued for Barbara's custody of the chil­dren, and kept doing so after all was settled; these participants behaved as if nothing important had happened. Indeed, they did not harm people physically. They won a fairly easy victory because they benefited from the fact that the opposing party did not have any confidential information. Usually they do not feel guilty for a while because they can persuade themselves that nothing bad will happen. The situation was beyond repair anyway, and nobody knew what type of partner Paul really was. Winning is all that counts; after all it is an attorney's job to get as much as possible for his clients. And it should not be forgotten that simulation can be understood as nothing but a game. This implies an opportunity to play harder than one would claim to act in real life. In this case, the potentially bad consequences are not perceived, or their signifi­cance is minimized (resulting in diminished responsibility). One has done one's duty as an attorney, and anyway nobody knows whether Paul's attorneys also did not have confidential damaging information about him.

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But this is only one group. What about the many others who argue differently about the same outcome?

Resilient Negotiators? Unhappy Moralists

In this section, we would like to turn our view toward those defenders of Barbara who fight for a good divorce settlement including an attractive financial deal for Barbara (that would enable her to live an independent life)—but, at the same time, plead for giving custody of all children to Paul, not Barbara. About one third of the 110 subjects agreed (in their opposing roles) on giving all children to Paul. How can we explain this?

The morally resilient persons who used their information against the prima facie interests of their client (that is, in the normal case, not to uncover the information to everybody, but rather transform it in order to indirectly help the attorneys of the op­posing party) in most cases do not appear happy with the result of their work. When we talk to these persons, they voice the impression that they have not fulfilled the de­mands of a good negotiation They do not feel really successful even when convinced that they have done the right thing. One of them stated, "I am exhausted, I will never become a good negotiator. I think it was the right thing to do, but I am wondering how we could have brought things together." This seems to be the key issue: On the one hand, the negotiator should be a winner with good tactical and economic abilities. On the other hand, he should have a moral stance. Power, Khmelkow, and Self-Esteem Project Team (1998) found that a self-critical position regarding this issue in­creases the likelihood of low self-esteem. The judgment recorded above points in the same direction. Subjects entertaining an "additive model" of the relationship between success and morality tend to separate these two domains. The balance of strategic and communicative acts, according to Habermas (1981a), is uneasy. A more ideal model would be the "regulative model" where communicative forms of informing or limiting the aspects of effectiveness are integrated with forms of evaluating the responsibility

^ The data presented in this chapter derive from a questionnaire that the participants of the negotiation courses fill out after the end of the negotiation, but before the whole group discus­sion. The answers of 110 participants in different courses are included here. The results should be read cautiously. First, data are event specific; second, there is no control of social class; third, often someone would like to give all children to Paul, but does not have the power to arrive at this result. The main question we were interested in was whether the groups who agreed that Barbara should have the custody of the children scored lower in morally relevant variables than the groups who agreed on giving custody of the children to Paul.

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of outcomes (see Oser, 1998). Subjectively, if we separate domains, we cannot be sat­isfied if one of them interferes with the other.

By intercorrelating some of the items of our questionnaire, we expected similar re­sponses to the question of how certain outcomes of the negotiation are to be under­stood. In what follows, we would like to mention a few interesting differences (all Pearson correlations).

Persons who decide to give the children to Barbara show a highly significant cor­relation between the statement "Morally, I behaved completely correctly" and "I am satisfied with the outcome" (.707). When the children were separated (e.g., the older went to Barbara, the younger to Paul), the correlation was less high {A6^). When the children were given to Paul, there was no significant correlation (.22*). WTiat does this mean. Our data seems to show that persons (at least in our sample) who behave in a morally dubious way nevertheless have the tendency to interpret the result (of their behavior) as morally correct and, on the whole, satisfying, while the persons who try to behave in what they perceive as decent ways nevertheless are more likely to feel somewhat negative, rather unhappy, and insecure.

This again leads to the assumption that there exists a complement to the "happy victimizer" (Nunner-Winkler & Sodian, 1988), namely, the resilient "unhappy moralists." In other words, persons acting in a morally correct manner do not gener­ate positive correlations with content about the solution they reach. This can be sus­tained with another significant correlation: "The solution is in the interests of all concerned parties" correlates positively with "We were lying" (.39*) if the children were allocated to Paul, but negatively, if the children were given to Barbara" (-.64*). That means that for Paul's defenders, there is a positive relationship between lying and interests. They do believe that lying could help, whereas the "true liars" do not believe that. "Moral correctness" does not correlate positively with "lying" for per­sons who agree to give the children to Barbara; rather, the correlation is highly neg­ative {—.G6^). For Pauls lawyers (children were given to him), the correlation of "moral correctness" and "responsibility for the broken marriage" is not significant (.27*), whereas for the persons who give the children to Barbara this correlation is significantly negative {-.GA"^).

In sum, the unhappy moralist appears to be a person who suffers from morally not being compatible with success. He knows that the goal of winning in a negotiation situation interferes with the goal of caring, and avoiding injustice. Typically, this con­flict lets the unhappy moralists doubt their ability to ever reach an equilibrium be­tween the two values. Still, these moralists are resilient negotiators. When faced with the negative information regarding the client they represent, they successfully resist the temptation to rationalize the significance of this information or simply to lie. Liars among our subjects suggested the following: "It is clear that all children want to be

216 Fritz K Oser and Roland Reichenbach

with their mother," "Everybody knows that the children hate their father," or "You know well that the father never mentioned that he wants custody of the children."

What about the rationalization, the practical explanations (justifications) of mor­ally dubious behavior? To obtain a clearer picture of how people deal with the dilem­ma of having to do a dirty job, we need to look at the whole-group discussions that take place after the small-group negotiations in the divorce case.

Four Debatable Justifications For Not Having Been Resilient

As mentioned above, the participants are informed by the course instructors, after their exchange, regarding the results of their negotiations about the confidential infor­mation for the two parties. In most cases, Paul's attorneys react emotionally. "I feel vic­timized, you obtained a compromise by fraud"; "It is unbeUevable what kind of swindlers you can be!"; "We have been cheated"; "Morally speaking, this is dishonest behavior." The outbursts are expressions of moral indignation. Many members of Pauls party cannot understand that Barbaras party behaved as if their confidential in­formation was just as innocent as their own.

There usually follows a longer discussion phase, during which members of Barbaras party seek to justify themselves. The justifications correspond to one of the following four patterns: (1) If we had disclosed the information, Barbara would have found other attorneys

who would have contested the correctness of the confidential information and everything would have started again. Who does not pull the rope always loses. "If we do not do it, somebody else will" is an attempt at generalizing the debatable behavior. It is implied that the action would have taken the same course anyway, whoever did it, whether he wanted to or not. Not moral reasonableness counts, but only strategic success. It does not matter who commits the immoral act because it will happen anyway. Therefore, the act is separated from the person who commits it. Hence, the justifying argument consists in contesting that there is any responsibility for wrongdoing because somebody else would have acted the same way, getting paid for it. This argument is never generally agreed upon by the participants. It is worn out, and the emotionality with which it is usually presented translates the fact that the arguing parties finally are not convinced of the moral correctness of their omis­sion. Also, using such an argumentation tends to bring disrepute to a profession which is not usually inclined to do everything for profit, in particular if it comes at the moral cost of doing harm to the weak, the children, and so forth, rather than observing the moral norm of treating them fairly.

Moral Resilience: The Unhappy Moralist 217

(2) Another frequently used argument concerns Barbaras mental health. If only she undergoes therapy, she will be alright after a while, and look after her children as a good mother. To this is often added that she is not responsible for Paul's night shifts. Underlying these arguments is the belief that persons are not responsible for their immoral deeds; the circumstances did not leave them any choice, there­fore it was alright to fight for Barbaras rights. Eventually, she was not responsible for what happened to her.

This argument is convincing only as long as one is not aware of the fact that it cannot be generalized because a psychological justification can be given for every possible case of misbehavior. Every murderer has suffered from an unfeeling fos­ter mother. Therefore, this argument does not carry much weight and is often rejected rather quickly by the opposing party. (Even the version where Barbara successfully undergoes psychotherapy and therefore is entitled to the custody is not accepted by all.)

(3) A third argument runs as follows: Those who want to give Paul custody of the children have no idea what the "real" world is like. In that world, a judge would always decide against Paul and for Barbara. Therefore, it is justified to take this eventuality into account even if it means some constraining because any other decision would mean falling prey to illusions that have little to do with the reality of official courts. From this point of view, it is better to look at the legal side first and accommodate this, and ask any moral questions only afterwards.

This argument is not very rational. Following through with it leads to the conse­quence that morality depends on external constraints. There are many historical examples that demonstrate into what abyss such a course of action might lead. The history of ethical freedom teaches us how important is the possibility of entering freely into moral arguments with organizations or institutions. Moral­ity—and the advocacy of justice, care, and truthfulness is needed to balance the sheer will to win that tends to dominate negotiations.

(4) The fourth argument concerns the oppression of women. It runs more or less as follows: Because women have fewer chances in life and are often treated unfairly, Barbara should be entitled to the custody of her children. This compensation argument abstracts from the particulars of the case and immediately introduces a higher principle of justice as the sole determinant—even if the children suffer from it. "Paul has put the load of five children on Barbara. He is guilty enough to disadvantage her in any case." The implication is that Barbara has no free will and is the victim of arbitrary decisions by other persons. Usually, women demolish this argument by showing that it is not rational. One cannot simultaneously argue both for and against the autonomy of the decision taken.

218 Fritz K. Oser and Roland Reichenbach

These four types of arguments justifying nonresilient negotiation strategies appear al­most each time when Barbara is given the custody of her children, or when the chil­dren are separated. They are used as justifications by persons with high social responsibility (such as managers) who do not understand how they came to do such harm to weak children in the process of maximizing the benefits for their client. As their arguments fall on their face rather rapidly, the uneasiness of the participants be­come ever more visible as they realize the weakness of their argumentation and the im­possibility of reaching a consensus. The arguments we are discussing are not universalizable and therefore are not morally acceptable arguments; they merely serve as self-defense.

This brings us back to the question whether these rationalizations either manifest lower stage reasoning or represent moral performance, but not true moral compe­tence. Is moral resilience simply a question of higher moral competence?

Moral Competence, Moral Performance, and the Question of Moral Resilience

The four types of arguments sketched above suggest a structurally "low" judgment. But this is not the case. If we believed that moral performance is nothing but incomplete moral competence, this hypothesis would be highly plausible. Theoretically, however, moral competence is different from moral performance (with some overlap, of course). As Kohlberg understands it (1981, 1984; Kohlberg, Levine, & Hewer, 1983), moral competence is a judgment under optimal conditions (lack of pressure or constraints re­garding resources, and sufficient time to discover an elaborate solution). These condi­tions can be compared to those of the "ideal speech situation" (Habermas, 1981b).

To construct a solution of a moral conflict in a resilient way reflects a different moral structure, a form of performance that includes aspects of the moral will. Such performance structures can be different depending on the architecture of the re­lationship between the personal moral self and the prevailing situational constraints. Moral judgments as performances in real moral situations differ greatly from mere theoretical dilemma situations where the focus is on "pure" competence. Situated judgments are influenced by the specific contexts and their constraints, by the feel­ings of the actors, by expectancy patterns, by the moral indignation of persons con­cerned or involved, and, of course, by other factors. Thus, there are contexts and personal perspectives that influence and form the moral performances which can be elucidated in negotiation processes, but which also may inhibit the expression of ac­tual moral competence.

Introducing the notions of developmental context, realism, and developmental plasticity of judgment, Baltes (1990) has introduced a framework that may help to

Moral Resilience: The Unhappy Moralist 219

consider these aspects. Age, historical situation, and nonnormative elements of indi­vidual experience also impact on the performance of judgments and promote (moral) development. By looking at judgments in negotiation processes, we do not deal with the general development (of competence). Rather, we focus not only on the condi­tions of the willingness to win by morally problematic means, such as lying, but also on the conditions of acting according to ones expectations as a moral subject. Immor­al behavior—especially in negotiation processes—must be analyzed mainly in terms of personal and contextual constraints, and not from the competence perspective of moral judgment, or from the perspective of abstract ideas about what persons view as right or wrong. In real contexts, the "genesis of immorality" is strongly influenced by forces from inside the person and from the outside (the situation and other persons) and should therefore also be described in view of these factors.

Psychological research, however, has rarely been devoted to the analysis of contex­tual conditions of performance judgments. In that respect, it must be said that most empirical (and nonempirical) research is carried out in some sort of "moral void." Damon (1977), for example, in one of his well-known experiments, asked children whether they would obey if their parents asked them to steal. The result is that most of the children he asked refused (see also Laupa & Turiel, 1993; Tisak & Tisak, 1991; Smetana, 1988). In this research, we find careful descriptions of the stages of authority belief and, thus, competence judgments. Let us imagine the results if real parents were instructed to encourage their children to steal in some situation of urgency. How would the children solve the conflict between the potential withdrawal of love and moral duty? Obviously, such research would not only provide an entirely different perspective on the relevance of competence as manifested in abstract moral reasoning but it would also provide a more appropriate view on morality in context. As a consequence, state­ments such as the following would be interpreted quite differently: "This research has shown that children reject commands from otherwise legitimate authorities if the com­mand is judged to be morally unacceptable. In contrast, regarding conventional rules that regulate the functioning of social systems, authorities are judged to be legitimate when giving commands consistent with the conventional system." (Laupa Turiel, & Cowan, 1995, p. 137) Apparently, these researchers discuss contextual conditions of moral judgment. However, we believe that they actually are doing something else, and that the children in the contexts discussed by the authors would act very differently.

Another example—^which we will not discuss further—is Helwigs (1995) who distinguishes between two dimensions in order to provide a better understanding of moral judgment performance: (a) "the types of social and moral issues brought to bear in making a decision or judgment" and (b) "the developmental level, conceptualized more locally than in traditional stage theories" (p. 167). Similar points of critique would have to be made here. The moral agent, situated in a specific context, is only in

220 Fritz K. Oser and Roland Reichenbach

part a rational and competent analyst of his or her moral obligations. Competencies in moral judgment are weakened by coercions from the inside (such as specific expec­tations or stereotypes, e.g., as "in negotiations you have to win") and the outside (such as a tough opposite party using unilateral strategies in negotiations).

Thus, in performance situations, judgment is covered by the shadows of other forces of life that strengthen the wish to be successful, to be nice, to be a winner, and to become reelected, and so forth. Often, these shadows are values that override mo­rality (Nisan, 1990). And that is one reason why morality in context follows other rules than moral reasoning competence may suggest.

The Difficulty of Reconciling Success With Morality

In the beginning of this chapter, we mentioned three different fields of action where moral resilience may be required. Omission of abuse of information is only one form; we chose this as a heuristic because, in a prototypical way, it starts from a situation where we can be immoral without suffering legal consequences. This may be the most attractive reason for not being resilient. Not being forced to behave morally means that morality is given to one's free will and autonomous decision making.

The proverbial expression "The truth is always naked" served as a section heading earlier in this chapter. Unfortunately, the differences in the realm of moral perfor­mance are not always black and white. Resilient and nonresilient negotiators cannot be separated on all dimensions which we took to be morally relevant. Here are some examples for both clear differences and the lack of difference: The persons who decid­ed to give custody of the children to Barbara, or to separate the children, believed that they held back significantly more information than those who gave unrestricted cus­tody to Paul. "Moral correctness" is rated lower if the children are given to Barbara and much lower if they are separated. But the nonsignificant comparisons seem to be even more interesting. There were no significant differences for the following items: "Our solution took the children's welfare into consideration"; "We negotiated in ethically correct ways"; "The opposing side was trusting us"; and "We have lied"(!). Why is this? We beUeve that the reason is the mixture of morality and strategic success. We call this the "interpretative model" of the relationship of success and morality. It seems that people have somehow integrated postmodernity with their moral minds.

It seems that modern people find it difficult to reconcile success with morality. And this is why subjects who are not morally resilient evaluate themselves either as successful or as unsuccessful. Those who are resilient often have the feeling that morality leads to failure when it is important to get one's way. For them, morality in­hibits success.

Moral Resilience: The Unhappy Moralist 221

In contrast to this widely held notion, we would like to frame moral resilience as a responsible way of striving for success, a construction of a solution where the product pursued is a priori in balance with moral criteria, such as justice, care, and truthfulness. In the divorce case, we may still keep our information for us; but we use it in order to support the weakest party in the game, the well-being of the children, and resist the temptation of riding roughshod over the interests of the other party. To be morally re­silient does not simply mean to be morally good in the general sense of the term. It means to be good (and prove one's integrity and character) under conditions of risk.

Morally resiHent persons not only react to situational constraints as if they played against the functionalist success-oriented rule of the game but make an attempt at generating an integrity of moral adaptation. Thus, the process of handling the hidden information is more important than the product. Moral resilience can never be rigor­ous or orthodox. It remains between two worlds, constructing each of them with ex­plicit reference to the other.

Moral Resilience and Claims for Universality

If expectations regarding the internal rules of a negotiation situation and, in addition, the expectations of a related reference group combine with the wish to win, what then does it mean to be morally resilient.'' How can a person step out of this set of expecta­tions to act according to general principles of morality.^ The liberal emphasis on the freedom of economic interchange allows for "unfair" negotiations, and the more cun­ning someone is, the more morality is lost behind tactical considerations. The conser­vative position highlights community as a place where practices of the good life are cherished, while diminishing the emphasis on the self-actualization of the individual and stressing common values (Maclntyre, 1987; Oakeshott, 1984). But also in com­munities, the "rational ends of action," as Max Weber calls it, may focus on means-ends relationships and overaccentuate the rejection of deontic justifications of a moral end. As mentioned at the outset, the purpose of negotiation is to contribute to the in­terests of each party; naturally, each side wants to reach an optimal solution. Obvious­ly, this does not permit to disclose every information that could be used against one's interests. Thus, any negotiation needs space for personal reservations on both sides. But this, again, gives rise to a "grey area" of moral disequilibrium. How, then, can we establish a claim for morality in negotiations and how must this claim be structured beyond the arguments already presented? Is there any norm that commands similar authority in any type of situation?

A negotiation is a semipublic process that requires a coordination of individual and social demands. The unspoken but universally given moral claim refers to a tacit un-

222 Fritz K Oser and Roland Reichenbach

derstanding of the limits of rational egoism, implying the quasi-contractual promise not to betray or to exploit the other person. Hence, morality is much more than the sum of what is valid in general. There is always an offer of trust in the unspoken prom­ise that a person will also take into account the others needs as he or she perceives it. That is why, in the field of negotiation theory, the most important concepts stress the continuity of the relationship between the partners to a negotiation as a necessary ele­ment that must always be taken into account (Gulliver, 1979; Fisher & Ury, 1981).

What is a continuous long-term relationship other than a functionalization of the general unspoken promise to be correct, just because I do not know everything in the package that the bargaining is about? To presuppose this tacit mutual understanding is a powerful construct of the reality of negotiation. To give a promise and to keep it, even when nobody else can really control the fairness of the maneuvers in the negoti­ation process and the contractual fidelity (beyond what is observable during and after the bargain) is a powerful moral act. Hannah Arendt (1981, p. 312, author's transla­tion) has written: "The task which is given through the capacity to give promises and thus regulate important human things must be confronted and cope with the uncer­tainty. The only other way to get things in order would be self-control or power over others; and both of these are not necessary. For the promise and the resulting contracts and agreements are the only bindings to others which are adequate to a freedom under the conditions of non-sovereignty." What this means, we learn only by negative ex­perience. This turns the negotiation into a place of moral endeavor. Through the un­spoken but lived promise, the moral foundation of negotiations has at least an element of universality.

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