Dispute Resolution Magazine - Winter 2019

Research Insights

Edited by 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.

APOLOGY

A Long Time Coming: Delays in Collective Apologies
and their Effects on Sincerity and Forgiveness
Michael Wenzel, Ellie Lawrence-Wood, Tyler G. Okimoto & Matthew J. Hornsey
Political Psychology 39(3): 649-666 (June 2018)

Political apologies by one group to another often occur well after the original transgression. What effect does such a delay have on perceptions of sincerity and forgiveness? A delayed apology could reflect the offender group’s reluctance to apologize or, alternatively, it could represent time and consideration spent on developing an appropriate response. In the latter case, the delayed apology would represent a sincere acknowledgment of the harm done; in the former, it would not. In two studies, the authors found that a verbal collective apology, when delayed, was perceived to be less sincere than when offered more immediately following a transgression, and this translated to less forgiveness. However, in the second study, the negative effects of time delay on sincerity and forgiveness were mitigated or reversed when the apology was in the form of commemoration. The commemorative apology gave rise to favorable attributions when it included a commitment to remember, gave voice to victims, and the apology was perceived as representative (for example, did that official statement from the Libyan government really represent the views of the Libyan people?). These attributions mediated the effects on sincerity.The results suggest that collective apologies that are offered with considerable delay appear less meaningful and less deserving of a forgiving response, unless the apologizing group is able to express consideration and thoughtfulness through the apology process.

ARBITRATION

Arbitration Nation: Data from Four Providers
Andrea Cann Chandrasekher & David Horton
California Law Review 107: 1-67 (forthcoming 2019)

This article sharpens our understanding of arbitration by reporting the results of an empirical study of 40,775 cases filed with four major arbitration providers between 2010 and 2016. It highlights three main points. First, a wave of reforms has made arbitration surprisingly affordable for consumers, employees, and medical patients. Indeed, in leading arbitration providers such as the American Arbitration Association, JAMS, and the Kaiser Office of the Independent Administrator, a majority of plaintiffs pay no arbitration fees. Second, while businesses predicted that pro se plaintiffs would flood the arbitral forum with low-value claims, it turns out that enterprising plaintiffs’ lawyers – not pro se litigants – have taken advantage of arbitration’s open doors. In fact, some attorneys have filed class action-style cases, bringing dozens or even hundreds of related arbitrations against the same company. Third, although arbitration does indeed favor repeat-playing businesses, that is just half of the repeat-player story. Repeat-playing plaintiff’s law firms also fare well. In fact, in a variety of settings, no variable affects win rates as dramatically as whether a plaintiff hires attorneys with arbitration experience.

Too Much Power and Not Enough: Arbitrators Face the Class Dilemma
Alyssa S. King
Lewis & Clark L. Rev. 21: 1031-1079 (2018)

After a series of Supreme Court decisions limiting the use of class arbitration and allowing defendants to contractually prohibit it, many expected that the end of this form of arbitration was imminent. Others argued that, given arbitrators’ wide discretion and the limited scope for judicial review, class arbitration might continue much as it had before. The empirical data developed in this article show that neither side is completely correct. Class arbitration with the country’s largest provider, the American Arbitration Association (AAA), has not ended, but it has changed significantly. Arbitrators’ willingness to find that a contract gives them jurisdiction to allow class arbitration has decreased dramatically. The AAA’s publicly available awards demonstrate that the class arbitration system was neither dismantled nor unaffected. Instead, the arbitrators’ approach to the change wrought by the Supreme Court resembles that of judges. Some businesses have updated their contracts to include class waivers, but many arbitrations have gone forward under contracts that are not so clear. Although they once routinely ruled that class arbitration was permitted in such instances, arbitrators have now split nearly 50-50 on whether ambiguous clauses permit class arbitration. Arbitrators not previously involved in AAA class arbitrations were reluctant to allow class arbitration. (Only one of them did so.) Arbitrators with more experience with AAA class arbitration were split on the matter. The arbitrators take the law seriously, and its inconsistencies have resulted in the present muddle. Unlike judges, however, arbitrators cannot write their way out of trouble by creating a general default rule. Their authority is simultaneously too broad and not broad enough.  

AROUND THE WORLD

A Case of Motivated Cultural Cognition: China’s Normative Arbitration of International Business Disputes
Pat K. Chew
The International Lawyer 52(3): 101-147 (2019)

The centuries-old conception of judges and arbitrators as highly predictable and objective is being dismantled. In its place, a much more textured, complicated, and challenging understanding of legal decision-making is being constructed. New research on “motivated cognition,” which posits that people believe they are open-minded about alternatives and gathering relevant information but are unwittingly influenced to reach a preferred outcome, demonstrates that judges and arbitrators are more human than mechanical, pouring themselves – and the cultural and institutional contexts within which they act – into their decision-making. This article extends the emerging model of motivated cultural cognition, a form of motivated cognition, to the global stage, investigating arbitration of business disputes between two world powers: the United States and China. Through a first-of-its-kind empirical study of Chinese arbitration of 1,000 international business disputes, it uncovers a fascinating finding. Using particular decision rules that are consistent with China’s core cultural values, Chinese arbitrators unwittingly reach outcomes that favor Chinese and other culturally similar parties while disfavoring parties from culturally dissonant countries – most notably, the United States. Given that disputes between business parties with vastly different cultures are now the norm, this article provides important insights on the ever-evolving blueprint of cross-cultural justice.

COURTS & LITIGANT PREFERENCES

Inside the Mind of the Client: An Analysis of Litigants’
Decision Criteria for Choosing Procedures
Donna Shestowsky
Conflict Resolution Quarterly 36(1): 69-87 (Fall 2018)

This article presents findings from the first longitudinal study to ask civil litigants prospectively what criteria they plan to consider when selecting legal procedures and then retroactively assess the criteria used to make those decisions. The most commonly referenced ex ante criteria are lawyers’ advice, cost, and time. The retrospective reasons also include these factors, but the list is narrower and more practical. Litigants who initially listed a desire to reduce costs or follow their lawyers’ advice were later significantly more likely to report using procedures for these reasons, suggesting the stability of these criteria. However, the same stability did not manifest for other criteria. Implications for improving protocols for counseling litigants about procedure are discussed.

Does Alternative Dispute Resolution Facilitate Prejudice and Bias? We Still Don’t Know  
Gilat J. Bachar & Deborah R. Hensler
SMU Law Review 70(4): 817-836 (2017)

Using a qualitative content analysis approach, the authors identified 38 efforts to test empirically the hypothesis that mediation and arbitration create systematic differences in dispute resolution outcomes by gender, race, ethnicity, or socio-economic stratum. Using a variety of methods, including laboratory and field experiments, surveys, and analyses of reported outcomes, empiricists have produced contrary and ultimately inconclusive results. Small samples and lack of methodological rigor reduce the reliability of the published findings. In sum, the answer to the question whether informal dispute resolution facilitates prejudice is “we don’t know.” In an era of increasing economic inequality and ever louder expressions of racial, ethnic, and gender prejudice, the authors assert we have a responsibility to learn more about how public policies that continue to favor alternative dispute resolution are affecting less powerful groups in US society. At the same time, rather than turning our backs on public adjudication, the authors argue we should invest in ensuring that our courts truly provide “equal justice for all.”

ETHICS

“I Won't Let You Down”: Personal Ethical Lapses Arising from Women’s Advocating for Others
Maryam Kouchaki & Laura J. Kray
Organizational Behavior and Human Decision Processes 147: 147-157 (July 2018)

 

The current research examines whether women’s personal ethics are compromised when representing others in strategic interactions. Across five studies (n = 1337), the authors demonstrate that women’s ethical choices are more sensitive to whether they are representing themselves versus advocating for others compared to men’s ethical choices. The authors find that other-advocating women are more deceptive than self-advocating women, whereas men are just as likely to engage in morally questionable behaviors when representing themselves or others. The authors further show that women’s unethical behavior is driven by their anticipatory guilt as they seek to not let their constituents down in an advocacy role. Relative to men, women’s ethical behavior when advocating on behalf of others is especially likely to reflect the presumed ethical preferences of their constituents rather than solely a reflection of their own ethical preferences. Given women’s relatively high personal ethics, these results establish a risk to adopting an advocacy role for women: the social considerations inherent to advocacy put pressure on women to engage in deceptive behaviors that compromise their personal ethics.

MEDIATION

The Long‐Term Effectiveness of Mediating Workplace Conflicts
Meriem Kalter, Katalien Bollen & Martin Euwema
Negotiation Journal 34(3): 243-265 (July 2018)

Using data from real workplace mediation cases in the Netherlands, the authors explore the long‐term effectiveness of the mediation of hierarchical workplace conflicts by comparing and analyzing participants’ perceptions of short‐term and long‐term mediation effectiveness. The study included mediations that result in a continuing employment relationship as well as exit mediations, which occur when employees end their employment. Specifically, the authors surveyed supervisors and subordinates to determine the extent to which they perceive mediation to be effective one year after the conclusion of the process. The study demonstrates a general positive relationship between short‐term and long‐term mediation outcomes. Supervisors and subordinates, however, perceive the long‐term outcomes somewhat differently, with supervisors perceiving greater compliance with the agreement than did subordinates after one year. The authors found no significant difference in perceptions of long‐term effectiveness between exit and non-exit mediations.

High‐Conflict Parents in Mediation: An Analysis of Dialogues and Sources to Conflict
Wenke Gulbrandsen, Hanne Haavind & Odd A. Tjersland
Conflict Resolution Quarterly 35(4): 335-349 (Summer 2018)

A significant proportion of parents in mediation present destructive and escalating conflicts. In a naturalistic study of sessions with high‐conflict couples, the authors observed dialogues with frequent interruptions, rapidly shifting subjects, and emotional attacks. A systematic search revealed eight distinct sources of conflict that interfered with the mediation process: Two related to the breakup, four regarding differing concerns of care for the child, and two mainly about the contextual conditions for child-care arrangements. The article describes these sources of conflicts in a format that could increase the capacity of mediators to recognize and address them during the process of mediation.

NEGOTIATION

 “I Was Going to Offer $10,000, but…”: The Effects of Phantom Anchors in Negotiation
Nazli Bhatia & Brian C. Gunia
Organizational Behavior and Human Decision Processes 148: 70-86 (September 2018)

Negotiators commonly attach phantom anchors – retracted and aggressive figures – to their actual and less aggressive offers. For example, a seller might say, “I was going to ask for $10,000, but I can offer $8,000.” Drawing from research on anchoring, the authors predict that offer-makers will economically benefit from offers with phantom anchors. Drawing from research on interpersonal perceptions, the authors test competing hypotheses indicating that phantom anchors might elicit perceptions of manipulativeness or benevolence, with economic implications. Finally, the authors explore situational conditions that could moderate these perceptions. Five studies show that negotiators using offers with (versus without) phantom anchors receive less aggressive counteroffers and more beneficial agreements in both distributive and integrative negotiations, but also seem more manipulative. Situations portraying the phantom anchor-actual offer combination as a true concession, however, dampen manipulativeness perceptions. Overall, the results suggest that phantom anchors represent a powerful yet risky and understudied value-claiming strategy in negotiations.

Do Women Ask?
Benjamin Artz, Amanda H. Goodall & Andrew J. Oswald
Industrial Relations 57(4): 611-636 (October 2018)

Females typically earn less than males. The reasons are not fully understood. This paper re‐examines the idea that women “don’t ask,” which potentially assigns part of the responsibility for the gender pay gap onto female behavior. Such an account cannot readily be tested with standard datasets. This paper is the first to be able to use matched employer-employee data in which workers are questioned about their asking behavior. It concludes that males and females ask equally often for promotions and raises. The paper’s empirical results suggest, however, that while women do ask, they “don't get.”

The Effect of Screen Size and E-Communication Richness on Negotiation Performance
Terri R. Kurtzberg, Sanghoon Kang & Charles E. Naquin
Group Decision and Negotiation 27(4): 573-592 (August 2018)

Using an empirical study, this paper investigated how each screen size and different presentation modes (video or text-only) can trigger meaningful differences when interacting with a partner in a negotiation. In a simulated multi-issue negotiation between a buyer and a seller, participants were instructed to communicate through either a large (laptop) or small (mobile phone) screen in either a video conversation or a text-based communication. The findings revealed that (a) negotiators communicating through a large screen performed better than negotiators interacting via small screen; (b) negotiators communicating through video conversation performed better than negotiators interacting via text-based communication; (c) negotiators communicating through video conversation formed higher levels of trust and satisfaction than negotiators interacting via text-based communication; and (d) negotiators communicating through video conversations over large screens achieved the highest joint outcome. Implications for the use of technology during negotiations is discussed, with attention given to the need to preserve more naturalistic cues through larger screens and the use of video conversations for best effect.

PERSUASION AND DECISION-MAKING

The Impact of a Limited-Time Perspective on Information Distortion
Anne-Sophie Chaxel, Catherine Wiggins & Jieru Xie
Organizational Behavior and Human Decision Processes 149: 35-46 (November 2018)

This article examines how a limited-time perspective influences the processing of new information during choice-making. Specifically, the authors examine how perceptions of a limited future promote the distortion of new information in favor of one’s prior beliefs. Across five studies, the authors provide evidence of a link between more-limited time perspectives and higher information distortion, and they illuminate the proposed process: the adoption of a cognitive consistency goal when the time perspective is limited. Overall, the current work identifies a new driver of distortion – the amount of time individuals believe remains in the future. Furthermore, it contributes a novel source of biased information-processing that is motivational in nature rather than the result of a lack of cognitive resources: the mere belief regarding how much time remains in the future influences information-processing goals and, subsequently, how decision-makers process new information.

Jim, we have spent even more time with this section. We think the quick example gives the reader some definition for this concept of “representativeness.”  In this version we have simplified to representative.

We may have revised to remove all meaning (and accuracy) from the sentence. Please read closely!

Preserving Jim’s note, which my revisions keep trying to delete:

JC NOTE: From reading the article, I think the authors mean “representativeness” in the sense that the apology was perceived to be representative of the feelings of the group offering it. Not sure my edits capture it. Here’s the relevant quote from the actual article:

“In line with the arguments presented above, the items tapped the perceived representativeness of the apology (“Was the official statement of the Libyan government representative of the views of the Libyan people?”), commitment to remember (“Do the actions of the Libyan government reflect an ongoing commitment to remember the desecration of American war graves?”), and voice to the victims (“Did the actions of the Libyan government allow Americans a voice regarding the events of March 7, 2012?”).”

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