February 17, 2021 Dispute Resolution Magazine

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. 

Arbitration

Collective Preclusion and Inaccessible Arbitration: Data, Non-Disclosure, and Public Knowledge

Judith Resnik, Stephanie Garlock & Annie Wang
Lewis & Clark Law Review 24(2): 365-431 (2020)

During the last decade, very few individuals filed claims, single-file, in arbitration. Given the success in precluding class actions and the rarity of filings, why are market actors seeking to silence the few who do arbitrate? And are such mandates enforceable by courts? In this article, the authors interrupt these silencing provisions through disseminating information about the rules of and use of arbitration. They track efforts to limit information about arbitration, outline the growing body of law on non-disclosure, and analyze the data about consumer use of arbitration. As the authors note, some jurists have held non-disclosure obligations unenforceable. Yet many decisions condone their imposition despite the repeat-player advantages that accrue to the clauses’ drafters, who have access to information that one-shot participants do not have. In addition to information about efforts to silence litigants that can be gleaned from the case law, the authors have also mined materials posted by the American Arbitration Association (AAA), which has complied with state statutes requiring administrators of consumer arbitration to make accessible the number of claims filed and the results. The picture that emerges is that of the millions of people using services and products, virtually none file individual arbitration claims. Because AT&T succeeded in persuading the US Supreme Court to enforce bans on collective action and require claimants to use the AAA, the authors researched arbitration filings against AT&T. Between 2009 and 2019, when the AT&T wireless services customer base ranged from 85 million to 165 million, about 90 individuals a year filed an arbitration claim. In the partial picture of outcomes that emerges, the median amount awarded to AT&T consumers was $575. The available data also provide insight into why, given that remarkably low level of claims, providers of services seek to silence the few who are arbitration users. Law firms and other aggregators have begun a market in de facto collective actions by bundling similar claims against individual providers. And outside of courts and arbitration, collective consumer action can seek remedies by putting information into the public realm that can affect purchasing decisions and press for changes in the behavior of service providers and employers.

Around the World

Fitting the Forum to the Fuss While Seeking the Truth: Lessons from Judicial Reforms in Italy

Paola Lucarelli, Nofit Amir, Dana Rosen, Hadas Cohen & Michal Alberstein
Available at SSRN

While settlement has long taken center stage in common law cultures, giving rise to the “settlement judge,” it is also gaining ground in European continental civil law cultures, creating unique judicial roles that broaden the repertoire of judicial function. The study uncovers an informative new judicial role arising from reforms in Italy, one that combines mediation awareness, adversarial settlement-seeking, and inquisitorial truth-seeking that the authors named “fitting the forum to the fuss while seeking the truth.” The authors focus on the Florence first-instance court in Italy. The court’s recent reforms encouraging settlement, mediation, and judicial conciliation are being replicated by other courts in the country. The authors examine the actual involvement of Italian judges in reaching consensual dispositions of civil cases and include a docket analysis of civil cases, findings from interviews with judges, and an analysis of court observations. Despite the strong preference for adjudication in Italy, judges are using unique tools to encourage settlement. Their intervention correlates with an increase in settlement prospects. This finding, combined with the finding that less than half of the cases (42%) are disposed through adjudication, raises the possibility that the vanishing trial phenomenon, well documented in common law systems, may slowly and uniquely make inroads in Italy. In addition, judges view their settlement role as another form of adjudication while viewing mediation as a broad, transformative alternative. The sharp separation between in-court justice and out-of-court justice might offer a new model of justice that avoids institutional cooptation of mediation, a problem in common law systems.

Finding Potential Speed Bumps and Pitfalls
in Buyer–Seller Negotiations in Twenty Cultures

John L. Graham, Mehdi Mahdavi & Navid Fatehi‐Rad
Negotiation Journal 36(3): 249-286 (Summer 2020) [Study One] 

Planting Orange Trees in Twenty Cultures: The Practice of Negotiations

Mehdi Mahdavi, Navid Fatehi‐Rad & John L. Graham
Negotiation Journal 36(4): 421-440 (Fall 2020) [Study Two]

In Study One, the authors examine the effects of culture on negotiation behaviors and outcomes in 20 countries and regions around the world. Their work integrates theories and methods from many areas of the behavioral sciences: marketing science, decision analysis, behavioral economics, game theory, social psychology, anthropology, sociolinguistics, linguistics, content analysis (including videotapes), and structural equations modeling. The data were created in a laboratory setting in which 1,197 experienced businesspeople from 20 cultural groups participated in a three‐product, face-to-face buyer–seller negotiation simulation. The authors provide an empirically based, innovative tool for understanding cultural differences and then use it to investigate how culture influences negotiation behaviors, processes, and outcomes across the 20 cultural groups. For example, they found negotiators from relationship-oriented cultures such as Japan, Mexico, and Russia tended to behave more cooperatively and to ask more questions than their counterparts in transaction-oriented cultures such as Germany and the United States.

In Study Two, the authors developed country profiles for each cultural group using 27 variables from their studies and those of others. The profiles are useful in two ways. First, the authors measure the extent of similarities and differences in behaviors across 190 pairings in cross-cultural negotiations (on the scale of 100, higher numbers mean greater similarity). Exemplary are the similarities/differences between Iran and the five permanent members of the UN Security Council in ongoing nuclear arms negotiations. The Iran/US score is US 33, /Germany 55, /France 57, /UK 39, /China ~60, and /Russia 46. This suggests Iranians and Americans will have the most difficulties in working together. And at least at this writing, it seems empirically so. Second, by directly comparing all 27 variables in the profiles, the authors report where difficulties are likely to crop up. Americans and Iranians are most different when it comes to turn-taking in conversations – Americans interrupt each other least, and Iranians the most of all the 20 cultural groups. And while Americans bring a transaction-oriented set of behaviors to the bargaining table, Iranians tend to be relationship-oriented. Finally, beyond the 190 matchups, the authors offer some general advice. First, asking questions is a key negotiation behavior, as it leads to greater information-sharing. Second, paying attention to nonverbal behaviors is crucial. And third, interpersonal attraction is a key component of inventive negotiation and international commercial relationships.

Emotion

Anger as a Trigger for Information Search
in Integrative Negotiations

Laura Rees, Shu-Cheng Steve Chi, Ray Friedman & Huei-Lin Shih
Journal of Applied Psychology 105(7): 713–731 (July 2020)

Research has shown that anger can be both detrimental in negotiations (increasing the chance of impasse or conflict) and helpful to the angry person (by eliciting concessions from the other party). Much of this work has focused on a receiver’s emotional response to anger. Yet little work has examined the influence of anger on information search, an important cognitive mechanism for joint value creation in integrative negotiations. The authors propose a cognitive approach: that negotiators facing an angry partner are more likely to seek out diagnostic information about their partner’s preferences and priorities. In turn, this information should enable negotiators to reach higher joint gains. Across multiple studies, the authors find that negotiators facing an angry versus a happy counterpart seek out more information, which leads to increased value creation.

Ethics

When Negotiators with Honest Reputations
Are Less (and More) Likely to be Deceived

Ilanit SimanTov-Nachlieli, Liron Har-Vardi & Simone Moran
Organizational Behavior and Human Decision Processes 157: 68-84 (March 2020)

Building on the ability, benevolence, and integrity model of trustworthiness, the authors examine the impact of three corresponding, commendable negotiator reputations – proficient, friendly, and honest – on deception in negotiation. The authors primarily differentiate between honest and friendly reputations, which are both seemingly cooperative and often tangled in past literature. They found that negotiators deceived counterparts with honest reputations less than those with friendly (or proficient) reputations due to such counterparts’ higher expected integrity, which led negotiators to (a) anticipate feeling more guilt (and less pride) about lying to such counterparts, and (b) anticipate increased positive reciprocity from such counterparts when being truthful to them. Yet this advantage of honest reputations disappeared and even backfired when refuted, especially when negotiating with individuals who typically do not lie in negotiations. These findings uncouple the two communal negotiator reputations – honest versus friendly – and suggest negotiators should be particularly concerned about having, and also about maintaining, honest reputations.

Mediation

How Does Domestic Violence Influence
the Likelihood of Settlement in Mediation?
New Data Answers Old Questions

Susan S. Raines & Vittorio Indovina
Conflict Resolution Quarterly 37(3): 195-205 (Spring 2020)

This study provides empirical evidence to answer critical questions surrounding the impact of various domestic violence (DV) behaviors on mediation settlement rates, party perceptions of safety, and perceptions of coercion in reaching agreements. The authors found there is no evidence that survivors of DV are being coerced into reaching unfair or unsafe agreements at the aggregate level. They also found that coercive controlling behaviors such as verbal threats, stalking, and harassment are more strongly correlated to lower settlement rates than a history of physical violence between the parties. Parties felt safer in mediation than other settlement processes (e.g., a hearing before the judge or attorney-negotiated settlement). Overall, cases with a history of domestic violence behaviors have significantly lower settlement rates, yet settling parties noted that they felt their settlement provisions increased their safety, thereby adding to the complexity needed to determine whether to mediate in specific cases. This means that case screeners, mediators, attorneys, and judges need to take a nuanced and individualized approach to decide whether to mediate in any specific case to ensure the mediation process can be done safely and free from coercion. Additionally, if screening can obtain detailed information about the absence or presence of allegations of specific domestic violence behaviors, mediation administrators can better decide which cases are likely to benefit from mediation and which are simply too fraught to justify bringing at-risk parties to the table. This research deepens our understanding of the impact of specific domestic violence behaviors on the process and outcomes of mediation.  

Negotiation

The Shadow Bargainers  

Ronald F. Wright, Jenny Roberts & Betina Cutaia Wilkinson
Cardozo Law Review (Forthcoming). Available at SSRN

In this article, the authors report on the responses of more than 500 public defenders who participated in a nationwide survey about their objectives and practices during plea negotiations. The survey responses create a rare empirical test of a major tenet of negotiation theory, the claim that attorneys bargain in the “shadow of the trial.” Describing the factors they believe to be important in plea negotiations, some defenders – those who emphasize the importance of collateral consequences or the pre-trial custody of their clients – do not stress the likely outcome at trial. Instead, these attorneys focus on the wants and needs of clients, hoping to persuade the prosecutor to operate outside a trial-prediction framework. These defense attorneys might ask the prosecutor to dismiss charges, divert the defendant out of the system, or recommend a sentence far below the expected outcome. Such outcomes are independent of any likely trial result or post-trial sentence. These defense attorneys, the authors argue, bargain in the “shadow of the client” rather than the shadow of the trial. The authors find that attorneys with the most years of experience tend more often to adopt the “shadow of the trial” theory.

After asking public defenders about their plea bargaining aspirations, the survey turns to actual negotiation practices. Here defenders’ self-reported bargaining methods do not measure up to their declared aspirations. For example, when it comes to fact investigation, file review appears to be the strong suit of defense attorneys, but other forms of factual investigation, such as witness interviews and site visits, occur less often, even in categories of cases where such investigation might prove useful. Defense attorneys also typically wait for prosecutors to make the first offer, despite the potential benefits of framing. A related article discusses the survey results about limited training opportunities for criminal practitioners to improve their negotiation skills. See Jenny Roberts & Ronald F. Wright, Training for Bargaining, William & Mary Law Review 57: 1445-1504 (2015-2016) 

Moral Obstinacy in Political Negotiations

Andrew W. Delton, Peter DeScioli & Timothy J. Ryan
Political Psychology 41(1): 3-20 (February 2020)

Research in behavioral economics finds that moral considerations bear on the offers that people make and accept in negotiations. This finding is relevant for political negotiations, which often involve moral concerns. However, behavioral economics has yet to incorporate a major theme from moral psychology: people differ, sometimes greatly, in which issues they perceive to be a matter of morality. For instance, some people might view minimum-wage laws or government-funded stem cell research as moral issues; others might evaluate these based only on the concrete outcomes they produce. The authors hypothesize that moral conviction leads to uncompromising bargaining strategies and failed negotiations. They test this idea in three incentivized experiments in which participants bargain over political policies with real payoffs at stake. For example, in one study, two people independently and simultaneously made bids for how to split a fixed sum of real money. Compatible bids were actually paid out. But if the bids added up to more than the fixed sum, no one got anything. Across several negotiations, participants were asked to imagine that they were negotiating on different political issues (e.g., minimum wage, stem cell research, progressive taxation). Each time, they were paired with a different, real person who disagreed with them on the issue. The authors found that participants who had stronger moral convictions on a given issue were more likely to bargain aggressively on that issue. So, for example, people who viewed minimum wage laws as moral issues made higher bids. This helps explain why it is harder to forge bargains on some political issues than others. The authors also find that liberals and conservatives differ in which issues they have moral convictions about. For instance, liberals have strong moral convictions about the minimum wage and progressive taxation and conservatives about stem cell research.

Insincere Negotiation: Using the Negotiation Process to Pursue Non-Agreement Motives

Polly Kang, Krishnan S. Anand, Pnina Feldman & Maurice E. Schweitzer
Journal of Experimental Social Psychology 89: 103981 (July 2020)

Negotiation scholars have assumed that participants enter negotiations with the intent to reach an agreement. In addition, negotiation scholars have assumed that negotiators cannot be significantly harmed by the negotiation process itself. The authors challenge both of these assumptions and identify important implications. They introduce the term insincere negotiations to characterize negotiations that involve one or more negotiators who feign interest in seeking an agreement and enter negotiations to pursue non-agreement motives, such as stalling for time, gaining information, or blocking a competitor from reaching an agreement. They explore how this broader conceptualization of negotiations changes both negotiator behavior and negotiated outcomes and makes the decisions to enter and to persist in a negotiation risky and strategic. Their findings advance negotiation theory in several fundamental ways and have a number of practical implications. For example, their work alerts negotiators to the possibility that a counterpart might use negotiation as a strategic tool to achieve non-agreement motives and identifies some of the strategies an insincere negotiator may use.

The “Fixed” Pie Perception and Strategy
in Dyadic versus Multiparty Negotiations

Mary C. Kern, Jeanne M. Brett, Laurie R. Weingart & Chase S. Eck
Organizational Behavior and Human Decision Processes 157: 143-158 (March 2020)

Negotiations are strategically, socially, and motivationally complex, and theorists argue that when there are multiple (compared to two) parties at the table, these complexities are exacerbated, leading to inefficient outcomes. The authors proposed that inefficient outcomes of multiparty negotiations were not a foregone conclusion. If multiparty negotiators brought weaker fixed-pie perceptions to the table than two-party negotiators, they might be motivated to use strategy differently from two-party negotiators and thereby address the complexity of their negotiation context. 

In three studies, multiparty compared to two-party negotiators had weaker fixed-pie perceptions, engaged in more integrative strategic behavior, shared information about priorities, and used more complex sequences of integrative and distributive behavior strategy. This pattern of use of strategy led multiparty negotiators to outcomes equivalent to those of two-party negotiators. These results suggest that the presence of multiple other negotiators leads to a reassessment of the assumption that the other party’s (or parties’) interests are directly and completely opposed to one’s own interests. Instead, negotiators in the multiparty context anticipated that other parties might be partially aligned with them and used strategy to identify that alignment.

The fixed-pie bias causes negotiators to fail to identify tradeoffs and create value in negotiation because the bias affects the way negotiators use strategy. The structure of multiparty negotiation reduces the strength of the fixed-pie bias, affects the way multi-party negotiators use strategy, and helps them reach efficient outcomes despite the complexity of the information they have to process.

Open to Offers, But Resisting Requests: How the Framing of Anchors Affects Motivation and Negotiated Outcomes

Johann M. Majer, Roman Trötschel, Adam D. Galinsky & David D. Loschelder
Journal of Personality and Social Psychology 119(3): 582-599 (September 2020)

Abundant research has established that first proposals can anchor negotiations and lead to a first-mover advantage. The current research developed and tested a motivated anchor adjustment hypothesis that integrates the literature on framing and anchoring and highlights how anchoring in negotiations differs in significant ways from standard decision-making contexts. The research begins with the premise that first proposals can be framed as either an offer of resources (e.g., I am offering my A for your B) that highlights gains versus a request for resources (e.g., I am requesting your B for my A) that highlights losses to a responder. The authors propose that this framing would affect the concession aversion of responders and ultimately the negotiated outcomes. They predicted that when a first proposal is framed as an offer, the well documented anchoring and first-mover advantage effect would emerge because offers do not create high levels of concession aversion. In contrast, because requests highlight what the responder has to give up, the authors predicted that opening requests would produce concession aversion and eliminate and even reverse the first-mover advantage. Across five experiments, the classic first-mover advantage in negotiations was moderated by the framing of proposals because anchor framing affected concession aversion. The studies highlight how motivational forces (i.e., concession aversion) play an important role in producing anchoring effects, which has been predominantly viewed through a purely cognitive lens. Overall, the findings highlight when and how motivational processes play a key role in both judgmental heuristics and mixed-motive decision-making.

Persuasion and Decision-Making The Adversarial Mindset

Dan Simon, Minwoo Ahn, Douglas N. Stenstrom & Stephen J. Read
In Psychology, Public Policy & Law (The American Psychological Association, 2020)
Available at SSRN

Many social outcomes are reached by means of competitions between opposing actors. While the positive effects of competition are beyond dispute, this paper contends that competitive situations also trigger a particular psychological mindset that can distort contestants’ judgment and lead to suboptimal courses of action. The paper presents a theoretical framework that consists of a myside bias, by which people adopt a self-serving view of the competition, evaluate themselves favorably, and evaluate their counterpart unfavorably. The framework also proposes the construct of otherside bias, by which people impute to their counterparts distortions that are similar, but opposite, to their own. The combined effect of these biases is to fuel conflict-promoting behavior. Next the paper presents two experiments designed to test this framework. Using minimalistic experimental treatments, the studies find that participants assigned to adversarial roles display the myside and otherside biases.

The primary objective of this paper is to offer a comprehensive account of the psychological mindset evoked by competitive situations. The authors integrate findings established across a variety of research fields into a unifying theoretical framework and demonstrate their joint impact on this important domain of human judgment and behavior. Second, they propose that coherence-based reasoning serves as the cognitive backbone of the framework, in that the array of judgments are intricately interconnected and organized in a coherence maximizing representational structure both within and between the myside and otherside biases. Third, they discuss the framework’s implications for a variety of legal domains, including negotiations, litigation, expert testimony, and police investigations.

Online Dispute Resolution

Utah Online Dispute Resolution Platform:
A Usability Evaluation and Report

Stacy Butler, Sarah Mauet, Christopher L. Griffin, Jr. & Mackenzie S. Pish
Available online and at SSRN

The Innovation for Justice (i4J) Program at the University of Arizona James E. Rogers College of Law, supported by the Utah judiciary and the Pew Charitable Trusts, released empirical findings and recommendations from observation-based usability testing of Utah’s online dispute resolution (ODR). The study used two research strategies over three evaluation rounds to identify the most critical bottlenecks in the Utah ODR process and generate five usability-related recommendations.

First, test participants had difficulty transitioning from case documents to the platform and experienced accessibility issues once on the homepage. Redesigned documents helped participants more easily navigate to the website by highlighting and restructuring key information. Second, participants initially struggled to complete the registration and login process once on the platform. The evaluation recommended several changes (e.g., reducing the number of registration steps, using verification codes) to mitigate user confusion. Third, participants faced significant obstacles when working with documents online. The team found that deploying familiar upload icons and instituting a simplified review of settlement documents increased accuracy and fairness. Fourth, participants were frustrated by their inability to quickly find information about and help with ODR. Further testing yielded recommendations for re-structuring help information (e.g., emphasizing the FAQ link) and creating an accessible overview video. Finally, the research team encouraged Utah to clarify legal information on the platform so that users would understand their rights and feel confident. Testing showed that defining key terms, helping customize legal answers, and clarifying the role of the ODR Facilitator would be welcome changes.

Nearly every study participant preferred using a website over appearing in court to resolve a small claims debt collection dispute. They also valued accessibility and transparency in the process. This research will help legal stakeholders in Utah and elsewhere ensure that ODR technologies are accessible to and equitable for all users.

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