September 13, 2019 Dispute Resolution Magazine

Research Insights - Summer 2019

James Coben and Donna Stienstra

Editors’ note: Recognizing that conflict resolution procedures are being developed and used in a wide variety of multidisciplinary settings, this Dispute Resolution Magazine regular feature showcases lessons to be learned from empirical studies of our broad field. Twice a year “Research Insights” summarizes, in the authors’ own words, published or forthcoming articles with research findings relevant to readers. The editors welcome suggestions for articles to include in future issues.

ARBITRATION

Amicable Settlements in Investor-State Disputes: Empirical Analysis of Patterns and Perceived Problems
by Ana Ubilava
Sydney Law School Research Paper No. 19/17. Available at SSRN

This article analyses investor-state arbitration cases that settle amicably after the arbitration has commenced but before the final award is rendered. The empirical study investigates whether and to what extent some common criticisms of amicable settlements are evident in practice. It examines four research questions that correspond with the major critiques of amicable settlements in investor-state dispute settlement:

  1. Is the amicable dispute settlement mechanism unsuitable for certain types of investor-state disputes?
  2. Do amicable settlements impede transparency?
  3. Do amicable settlements pay less compared to when the investor wins through an award?
  4. Is the non-enforceability of settlement agreements a problem in practice?

The findings suggest that not all these purported problematic aspects of amicable dispute settlement mechanisms are as evident in practice as is commonly believed.

COURTS

Bargaining in the Shadow of the Folk Law: Expanding the Concept of the Shadow of the Law in Family Dispute Resolution
by Jonathan Crowe, Rachael Field, Lisa Toohey, Helen Partridge & Lynn McAllister
Sydney Law Review 40: 319-338 (2018)

The idea that parties bargain in the shadow of the law has been highly influential in research on dispute resolution and family law. Critics have questioned the utility and coherence of the concept, but it continues to be widely accepted. This article draws on an empirical study of access to legal information in a post-separation context to argue for a broader and more realistic understanding of how the shadow of the law influences parties’ expectations and strategies in family law matters. Family dispute resolution, the authors suggest, does not take place in the shadow of the positive law, the law contained in statutes, case law, and other formal legal sources, as much as the shadow of the folk law, the law as depicted in informal sources such as online materials and popular media. It follows that there is not just one shadow of the law; rather, there are multiple shadows. These findings hold important implications for government agencies, family dispute resolution providers, and others involved in providing information and advice on post-separation issues.

MEDIATION

Improving Diversity in Commercial Mediation
by Isabel Castellanos, Susanne Schuler, James South & Frederick Way
CEDR Foundation (March 2019)
Available at https://www.cedr.com/foundation/diversity-inclusion/

This study relied on several sources of data: information provided by 290 practicing civil and commercial mediators who responded to the CEDR (the London-based Centre for Effective Dispute Resolution) Mediation Audit of 2018; focus groups with mediators, lawyers, and commercial users of mediation; general population statistics; data from comparable professions; and CEDR’s own internal data. The authors report the following findings regarding mediator diversity in the United Kingdom:

  1. Gender: Of mediators who are actively working (defined as handling more than one case a year) in the field of civil and commercial mediation, 33.6% are women. Of mediators conducting more than 10 mediations a year, 30.4% are women.
  2. Race: 92.7% of civil and commercial mediators are white, compared with 86% of the general UK population. The portion of black and Asian commercial mediators in the United Kingdom is significantly lower than the comparable portion in the general population: 1.3% of mediators are black, compared with 3.3% of the general population, and 1.3% of mediators are Asian, compared with 7.5% of the general population.
  3. Age: Commercial mediators are also significantly older than workers in other fields. 77.5% of commercial mediators are over the age of 50, and 42.4% are over the age of 60. This contrasts with the demographics of those gaining accreditation as mediators. While 56% of those in training are under the age of 50, only 22.5% of practicing mediators are under 50.

The authors made numerous recommendations for increasing diversity, including use and promote diverse role models to attract new mediators to the profession; encourage providers to review promotional materials to foster diversity; provide financial support to encourage applicants from under-represented backgrounds to be trained; encourage trainers to review the ethos and culture of their courses to ensure that they do not disadvantage any group; encourage experienced mediators to work with new mediators, rather than only those they know; suggest that new providers consider creating pathways for progression from accreditation to joining mediator panels to being selected for a case; use diverse groups, who have received unconscious bias training, to select members for mediator panels; and provide diverse lists when presenting lists of mediators for clients to select.

What Works in Custody Mediation?
Effectiveness of Various Mediator Behaviors

by Lorig Charkoudian, Jamie L. Walter & Deborah Thompson Eisenberg
Family Court Review 56(4): 544-571 (October 2018)

This study uses behavioral observation and pre-mediation and post-mediation questionnaires to measure the impact of mediator behaviors on participant attitudes and case outcomes in 130 court-connected custody mediations involving 270 participants and 30 mediators. As a quasi-experimental design, regression analysis controlled for a broad range of participant attitudinal and case characteristics. Mediator reflecting and eliciting strategies were associated with positive outcomes, while directing strategies had significant negative effects. Proportionally greater time spent in caucus was associated with increased participant trust in the mediator but more negative attitudes among participants. The article considers implications for mediators and court mediation programs.

NEGOTIATION

Deep Pockets and Poor Results: The Effect of Wealth Cues on First Offers in Negotiation
by Yossi Maaravi & Boaz Hameiri
Group Decision and Negotiation 28(1): 43-62 (February 2019)

In this article, the authors examined the effect of external cues on first offers in negotiation. Specifically, the authors present the results of three experiments and an internal meta-analysis through which they investigated the relations between buyers’ external characteristics, which serve as cues of economic wealth, including their clothes, cars, and country of origin, and sellers’ first offers in negotiation. The authors found that when external cues (e.g., an expensive car) indicated that a buyer had wealth, the seller’s demand was less beneficial to the buyer – i.e., the seller’s demand (or first offer) was higher.  The authors suggest and provide empirical evidence that these effects will emerge as long as the wealth signal is salient and perceived as an indication of the negotiating counterpart’s “deep pockets,” or ability to pay.

Negotiating the Gender Wage Gap
by Katrien Stevens & Stephen Whelan
Industrial Relations 58(2): 141-188 (April 2019)

There is some evidence that gender differences exist in the propensity to negotiate and outcomes from negotiation. The authors examine the propensity to negotiate compensation with the employer, the wage outcomes resulting from negotiation, and the impact on the gender wage gap. Using employee survey data for Australia, the authors find evidence that women are less likely to have the opportunity to negotiate over pay compared to their male counterparts. This pattern persists after accounting for a large range of observable characteristics such as occupation, industry, firm size, and part-time work. However, when they do have the opportunity to negotiate, women are no less likely to actually engage in negotiation of pay with their employer. The authors do not find strong evidence that women fare worse than men when negotiation occurs: their results do not support the notion that men and women’s hourly pay evolves differently as a result of pay negotiation with the employer.

The Impression Management Benefits of Humorous Self-Disclosures: How Humor Influences Perceptions of Veracity
by T. Bradford Bitterly & Maurice E. Schweitzer
Organizational Behavior and Human Decision Processes 151: 73-89 (March 2019)

Across five studies, the authors identify humor as a powerful impression management tool that influences perceptions of veracity. In many domains, such as negotiations and interviews, individuals face a challenge with respect to disclosing negative information and managing impressions. For example, an interviewer might ask an applicant to name his or her greatest weakness. In these settings, disclosures that reveal negative information (e.g., “I am not good at math”) can harm perceptions of warmth and competence. The authors demonstrate that pairing a humorous statement with a disclosure (e.g., “I am not good at math. Geometry is where I draw the line.”) changes perceptions of the veracity of the disclosure; disclosures are less likely to be judged as true when they are accompanied by a humorous statement than when they are not. The authors introduce the Speaker’s Inferred Motive Model and consider the possibility that (a) speakers pursue different motives, such as a transmission-of-ideas motive (to convey information) or an entertainment motive (to amuse an audience), (b) audience members infer the speaker’s motive, and (c) these inferences influence perceptions of the veracity of proximal disclosures (statements within the same speaking turn). As a result, by using humor a speaker may signal a shift in motive and diminish perceptions of the veracity of both the humorous statement and proximal claims. Taken together, when a target discloses negative information, including information that is highly relevant to the conversational partner, the use of humor can boost perceptions of warmth and competence. The authors discuss implications of our findings with respect to communication, interpersonal perception, and impression management.

ONLINE

Are You Angry (Happy, Sad) or Aren’t You? Emotion Detection Difficulty in Email Negotiation
by Christoph Laubert & Jennifer Parlamis
Group Decision and Negotiation 28(2): 377-413 (April 2019)

This research investigates consistency of emotion detection in email negotiations. Conveying and detecting emotions in negotiation is important because emotions can function strategically. Therefore, this research explores in four separate studies how consistently individuals detect discrete emotions in text-based (email) negotiations. Study 1 compared the results from two coders who rated the emotional content in 1,317 thought units (which convey a single thought) in a negative bargaining zone negotiation scenario. In studies 2 and 3, three different negotiation scenarios were explored, first on a thought-unit level and then on a message-unit level using a hierarchical emotion coding scheme. In all three studies, the human coders’ perceptions were also compared with a text analysis program. Study 4 compared coding from seven of the actual negotiators with that of an independent coder and a computerized text program. All four studies found low emotion recognition consistency across 14 different coders, with only one negotiation scenario in study 3 showing a moderate level of consistency across coders. Comparisons of computerized coding with human coders did not show improved agreement. High amounts of contrary coding by independent coders were also found. The authors’ research makes an important contribution to the literature by challenging the common assumption that emotions can be reliably detected in email negotiation. Factors that might influence more consistent emotion recognition and conveyance as well as implications for practice and future research are discussed.

PERSUASION AND DECISION-MAKING

Towards a Better Understanding of Lawyers’ Judgmental Biases in Client Representation: The Role of Need for Cognitive Closure
by James H. Stark & Maxim Milyavsky
Washington University Journal of Law & Public Policy (forthcoming 2019)
Available on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3368519

Previous research demonstrates that lawyers and law students are, on average, prone to overconfidence bias and self-serving judgments of fairness when they take on a representative lawyering role. This is the first study to investigate individual differences in susceptibility to these biases. Expanding on two previous experiments and utilizing as a sample 468 law students from twelve geographically diverse US law schools, the authors examined whether differences in students’ Need for Cognitive Closure (NFC), a motivational desire for clear answers over ambiguity, would affect both their judicial outcome predictions and their assessments of the “fair settlement value” of a simulated personal injury case when assigned randomly to the role of plaintiff’s or defendant’s counsel. The authors also investigated whether high- or low-NFC scores would have any effect on the efficacy of a “consider-the-opposite” (“list the weaknesses of your case”) prompt given to half of their subjects in an effort to de-bias these assessments. The authors found that a high need for closure intensifies self-serving bias in both students’ judicial predictions and fair value assessments and that bias in students’ judicial predictions could be mitigated through de-biasing interventions, even with students high in need for closure. Bias in fairness assessments persisted, despite de-biasing prompts.

Perspective Taking and Self-Persuasion: Why “Putting Yourself in Their Shoes” Reduces Openness to Attitude Change
by Rhia Catapano, Zakary L. Tormala & Derek D. Rucker
Psychological Science 30(3): 424-435 (March 2019)

Suggesting that parties adopt a different perspective is a powerful tool for opening people up to alternative views. On the basis of decades of research, this tool should be especially effective when people adopt the perspective of individuals who hold views that are very different from their own. In the current research, however, the authors found the opposite: In three experiments (total N = 2,734), the authors found that taking the perspective of someone who endorses a counterattitudinal view lowers receptiveness to that view and reduces attitude change following a counterattitudinal-argument-generation task. This ironic effect can be understood through value congruence: Individuals who take the opposition’s perspective generate arguments that are incongruent with their own values, which diminishes receptiveness and attitude change. Thus, trying to “put yourself in their shoes” can ultimately undermine self-persuasion. Consistent with a value-congruence account, this backfire effect is attenuated when people take the perspective of someone who holds the counterattitudinal view yet has similar overall values.

Choice Architects Reveal a Bias Toward Positivity and Certainty
by David P. Daniels & Julian J. Zlatev
Organizational Behavior and Human Decision Processes 151: 34-48 (March 2019) 

Biases influence important decisions, but little is known about whether and how individuals try to exploit others’ biases in strategic interactions. Choice architects – that is, people who present choices to others – must often decide between presenting choice sets that are positive or certain (influencing others toward safer options) versus presenting choice sets that are negative or risky (influencing others toward riskier options). The authors show that across thirteen studies involving diverse samples (executives, law/business/medical students, adults) and contexts (public policy, business, medicine), choice architects’ influence strategies are distorted toward presenting choice sets with positive or certain options. These distortions appear to primarily reflect decision biases rather than social preferences, and they can cause choice architects to use influence strategies that backfire.

How Your Power Affects My Impression of You
by Diana Orghian, Filipa de Almeida, Sofia Jacinto, Leonel Garcia-Marques & Ana Sofia Santos
Personality and Social Psychology Bulletin 45(4): 495-509 (April 2019)

In this article, the authors investigate how a person’s power affects the way we infer traits from their behavior. In Experiment 1, the results suggest that when faced with behavioral descriptions about others, participants infer both positive and negative traits about powerless actors, whereas they infer only positive traits when faced with descriptions of powerful actors or power-irrelevant (control) actors, an effect the authors call the benevolence bias. In the second experiment, the authors (a) replicate this effect, (b) show that it does not depend on the specific traits used in Experiment 1, and (c) show that it is also detected when traits are inferred. Experiment 3 further shows that this effect generalizes to a more generic power manipulation. Theoretical explanations for these findings are discussed.

Better to Overestimate Than to Underestimate
Others’ Feelings: Asymmetric Cost of Errors
in Affective Perspective-Taking
by Nadav Klein
Organizational Behavior and Human Decision Processes 151: 1-15 (March 2019)

Accurately assessing other people’s perspective in general, and other people’s emotional responses in particular, is essential for successful social interaction. However, substantial research finds that accurate perspective-taking is the exception rather than the norm. Although errors in perspective-taking are common, little is known about their consequences. Is it worse to overestimate or underestimate other people’s emotional responses? Seven experiments find that underestimating the intensity of other people's emotional responses leads to more negative evaluations than overestimating others’ emotions (Experiments 1–5). These results replicate across emotional valence and across observers and targets and occur because people believe that underestimation is indicative of lower effort and empathy in trying to understand the target. Additional experiments identify moderators of these effects, including stereotypical emotions and socially undesirable emotions (Experiments 6–7). The cost of errors in affective perspective- taking is asymmetric, suggesting that erring on the side of overestimating others’ feelings may be an optimal strategy for social interactions. 

RESTORATIVE JUSTICE

The State of Knowledge after Four Decades
of Victim‐Offender Mediation Research and Practice
by Toran Hansen & Mark Umbreit
Conflict Resolution Quarterly 36(2): 99-113 (December 2018)

This paper provides an overview of 40 years of victim‐offender mediation evaluation research. This research demonstrates that victims and offenders are more satisfied with the process and outcomes than with the courts, they are more likely to draft and complete restitution agreements, they derive psychosocial benefits, the process is less expensive, crime victims are more likely to receive apologies from offenders, and offenders are less likely to recidivate. These benefits are not necessarily uniformly distributed. This “first wave” research provides a platform for the second wave, which is currently underway. To contextualize these findings, current and future victim‐offender mediation practices are outlined.

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Dispute Resolution Magazine Digital Extras

  1. Further readings on How We Got Here:
    Recent Application of BG Group by Lionel M. Schooler
  2. Video examples for Beyond Abstinence 

James Coben

James Coben is a Professor at Mitchell Hamline School of Law and a Senior Fellow at Mitchell  Hamline’s Dispute Resolution Institute. He can be reached at james.coben@mitchellhamline.edu. 

Donna Stienstra

Donna Stienstra is a Senior Researcher at the Federal Judicial Center. She can be reached at dstienst@fjc.gov.

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