Hyman, Jonathan M., Beyond Fairness: The Place of Moral Foundations Theory in Mediation and Negotiation (October 9, 2014). Nevada Law Journal, Vol. 15, Forthcoming; Rutgers School of Law-Newark Research Paper No. 150. Available for download at SSRN: http://ssrn.com/abstract=2511414

“Intuitive moral judgments pervade mediation and negotiation but are not well understood or managed. People usually experience them in terms of “fairness.” A sense of unfairness can fuel a conflict or prevent an agreement; a sense of being treated fairly, or presented with fair terms, can close a deal. Despite the ubiquity of moral judgments, negotiators and mediators have generally not articulated a coherent and explicit way to deal with them. Moral Foundations Theory, developed by psychologist Jonathan Haidt and colleagues, provides an intriguing means to do so. Rather than relying on some general sense of fairness, Moral Foundations Theory disaggregates moral judgments into six distinct mental modules: Fairness/Cheating; Care/Harm; Loyalty/Betrayal; Authority/Subversion; Sanctity/Degradation; and Liberty/Oppression. Particular moral judgments might be located along one or more of these scales. In this paper, I explore ways in which Moral Foundations Theory sheds light on mediation and negotiation. I identify the modules at work in a variety of mediations and negotiations that have been described in the literature. In some, we notice that moral modules – in addition to Fairness/Cheating – explain surprising shifts from opposition to agreement. The modules even help explain the enduring attractiveness of value-creating, interest-based negotiation, since that approach requires some care for the other, to try to meet their needs, rather than just imposing a harmful loss on them, as strictly distributive, competitive negotiation often does.  Moral Foundations Theory remains contested. Is the concept of mental modules, on which it depends, viable? Are there exactly six modules, and are these six the right ones? Can we adequately understand the modules in vivo? Nevertheless, accepting it as a plausible tool, and contingent on its further development, it can provide mediators and negotiators with greater insight into the dynamics of the conflicts they face. Moreover, it can reveal opportunities to ameliorate strong negative moral intuitions and thus provide a clearer path to agreement.”