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February 14, 2024

Research Insights

James Coben and Nadja Alexander

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

The Impact of Banning Confidential Settlements on Discrimination Dispute Resolution

Blair Druhan Bullock & Joni Hersch
Vanderbilt Law Review 77: ___-___ (forthcoming 2024)

In the aftermath of the #MeToo movement, several states passed legislation banning confidentiality provisions in certain settlement agreements, in part to motivate firms to actively deter workplace discrimination. But for these laws to have a deterrent effect, claims must be revealed in a public forum. The onus is therefore on victims to go public, and, understandably, many victims are wary of doing so. Even from a pro-victim perspective, if employers cannot require confidentiality in settlement, claimants may suffer a lower likelihood of settlement and a lower payout. In situations where victims' allegations are not made public, bans on secret settlements may not effectively deter discrimination.

When states enacted confidentiality bans, there was no empirical evidence supporting these bans. This article offers the first empirical assessment of these confidentiality bans in employment discrimination settlements. Using data from large samples of employment disputes, the authors leverage the variation in state legislation to test the effects of these bans on filing and disposition of discrimination claims in arbitration and courts. The authors find an increase in the filing of claims, which is encouraging for the overall deterrent value of the laws. However, the results also show a small decrease in settlement, which may weaken the deterrence value of confidentiality bans unless plaintiffs are more likely to prevail. The authors conclude that to enhance deterrence, legislatures should couple these bans with additional measures, e.g. removing loopholes in discrimination liability law (thus increasing the likelihood that a victim prevails in court) and increasing the amount of damages that a victim can be awarded.

Forced Arbitration and Big Banks: When Consumers Pay to be Ripped Off

American Association for Justice Research (September 2022)
Available at SSRN: https://ssrn.com/abstract=4227331

Just 237 Americans out of 13,179 won monetary awards against banks and other financial services companies in forced arbitration at the American Arbitration Association (AAA) during the years 2017 to 2021, making for a win rate of just 1.8%. That makes the likelihood of winning a forced arbitration case against a bank nearly half the overall win rate against all corporations, which was already a pitiful 4.8%. In more than 100 cases, Americans brought a forced arbitration case against a bank, only to be ordered to pay the bank. Those Americans paid an average of approximately $24,000 each to the banks they had filed cases against. Americans brought $2.8 billion worth of claims against banks and financial services corporations but won only 0.5% of that (approximately $13 million).

Conflict Theory

Are You Listening to Me? The Negative Link Between Extraversion and Perceived Listening

Francis J. Flynn, Hanne Collins, & Julian Zlatev
Personality and Social Psychology Bulletin 49(6): 837-851 (June 2023)

Extraverts are characterized as highly social individuals who are highly invested in their interpersonal interactions. The authors propose that extraverts’ interaction partners hold a different view—that extraverts are highly social, but not highly invested. Across six studies, the authors find that interaction partners consistently judge more extraverted individuals to be worse listeners than less extraverted individuals. Furthermore, interaction partners assume that extraversion is positively associated with a greater ability to modify one’s self-presentation. This behavioral malleability (i.e., the “acting” component of self-monitoring) may account for the belief that extraverts are not listening.

Dispute Process Choice

Settlement Schemas: How Laypeople Understand Civil Settlement

Jennifer K. Robbennolt, Jessica Bregant, & Verity Winship
Journal of Empirical Legal Studies 20(3): 488-533 (September 2023)

What does the public think it means to “settle” a civil case? Most legal disputes in the United States end in an agreement to settle, but little is known about what laypeople think about settlement. To fill this gap, the authors took a direct approach and asked a nationally representative sample of US adults basic questions about settlement. The authors found widespread understanding about the essential nature and frequency of settlement, but persistent, though not universal, misconceptions about the details, including the role of a jury and settlement scope. Because settlement is such a pervasive part of the US legal system, the system's legitimacy turns in part on how the public understands and views civil settlement. This survey provides a foundational study of the understandings and framework that the public bring to settlement.

Emotion

An Angry Face and a Guilty Conscience: The Intrapersonal Effects of Fake Anger in Negotiation

David A. Hunsaker, Teng Zhang, & McKenzie Rees
Negotiation and Conflict Management Research 16(3): 211-229 (2023)

Research on anger in negotiation suggests that expressing anger can have detrimental effects on the relationship but may also improve the expresser’s economic outcomes, resulting in the use of fake anger (i.e., anger that is expressed but not felt) as a negotiation strategy. Based on research on moral emotions, the authors argue that fake anger in negotiation will lead to expressers’ guilt, which in turn negatively impacts their self-perception and their overall subjective experience of the negotiation. Across three studies, the authors consistently demonstrate that fake anger lowers negotiators’ feelings about themselves as well as their overall subjective value, and that guilt mediates this effect.

Mediation

Qualities and Long-Term Effects of Mediation

Peter Kaiser, Gerald Eisenkopf, Andrej Marc Gabler, & Felix Lehmann
Negotiation and Conflict Management Research 16(2): 132-164 (2023)

To clarify the long-term effects and sustainability of mediation, the authors reviewed approaches and findings from mediation research, psychology, and counseling and therapy research. They then developed a hypothetical model of mediation qualities that they tested in a prospective longitudinal study by investigating the long-term effectiveness of mediation in 303 escalated civil disputes of various types. The article discusses the following mediation qualities: antecedent structural qualities of mediation (such as individual variables of the participants, mediator qualifications, as well as system and conflict issues); process qualities (such as conduct of negotiations, explanation of all concerns and issues, and honesty of participants); outcome qualities of the mediated agreement (such as contract fairness or satisfaction); and sustainability qualities (such as long-term compliance, time and cost savings, long-term fairness, quality of life, conflict competence and parties' attitudes toward mediation).

Based on the results, practice and training should in future focus more on unfavorable initial conditions including obstructive personal characteristics such as incompatibility, dysfunctional relationships and system constellations such as violence or hierarchical dependencies. If personal and systemic problem susceptibilities are reduced and conflict competence and mutual trust are built up, future-proof settlement terms can be developed and implemented sustainably. Cooperation with therapists or organizational consultants and sufficient time resources are promising investments.

Parents Reporting Partner Violence: Reaching or not Reaching Agreement in Mediation or Litigating Without Mediation

Lily J. Jiang, Amy G. Applegate, Claire S. Tomlinson, Fernanda S. Rossi, Connie J. Beck, Jeannie M. Adams, & Amy Holtzworth-Munroe
Conflict Resolution Quarterly 40(4): 429-446 (Summer 2023)

Using data from a study examining mediation designed to be safer for separating parents reporting high levels of intimate partner violence (IPV) who were willing to try mediation, the current study compares cases that reached mediation agreement, did not reach mediation agreement and returned to court, or went to court without attempting mediation. Reaching mediation agreement was associated with positive outcomes (e.g., felt safer immediately, fewer court orders at follow up), and not reaching agreement was associated with potentially concerning outcomes (e.g., less satisfaction, more harassment from other parent). It is unclear whether not reaching mediation agreement caused more concerning outcomes or whether certain cases were more likely to not reach agreement; if the latter, further research is necessary to identify case characteristics that predict cases reporting high level of IPV not reaching agreement. Mediators and courts should consider how to intervene if mediation results in no agreement (e.g., putting such cases on a fast track to see a judge).

Can Early Caucus Improve a Community Mediation Model? Counteracting Stressors Prior to Joint Session

Jill S. Tanz, Martha K. McClintock, & Rae Kyritsi
Conflict Resolution Quarterly 40(3): 313-331 (Spring 2023)

This investigation tests whether adding an early caucus (EC) before joint session is beneficial or detrimental to the mediation process. Parties and mediators were asked open-ended questions about the use of EC, and responses were overwhelmingly positive. Also, there was no evidence of potential costs of EC, increasing mediator bias or impinging on time for joint sessions. Most responses showed that EC helped foster a sense of control, set a calm tone and built rapport, counteracting the typical stressors in a joint session that can hamper settlement. EC also improved the process for the mediator, providing: crucial information on what to expect in joint session; time to plan for emotional joint sessions; and an early opportunity to build rapport. When surveyed 5 years later, mediators had sustained their positive views. To supplement these findings in a wider range of cases, the parties' evaluations of the entire mediation session were also studied, comparing previous cases without an EC, to cases with EC and other types of Prior Meetings (IPVA Screens and both EC and IPVA Screens). Prior Meetings increased parties' perceptions that mediators understood and respected them and tended to increase perceptions that the mediator clearly explained what would happen and gave everyone a chance to talk about what was important. The EC experience can be generalized to other types of meetings with the mediator prior to joint session. This empirical study has implications for the current discussions about use of pre-mediation sessions and concerns about declining use of joint session.

Negotiation

Gender, Pay Transparency, and Competitiveness: Why Salary Information Sometimes, but Not Always, Mitigates Gender Gaps in Salary Negotiations

Julia B. Bear, Robin Pinkley, Zoe Barsness, Jens Mazei, Nazli Bhatia, & Dustin J. Sleesman
Group Decision and Negotiation 32(5): 1143–1163 (October 2023)

Although pay transparency is a widely accepted remedy for the gender pay gap, research has devoted little attention to the types of salary information that are available to job-seekers and whether the framing of this information moderates gender differences in negotiation outcomes. The authors first conducted an exploratory study to investigate whether men and women differ in how much they rely on and perceive the usefulness of various sources of salary information. A survey of experienced MBA students revealed that, relative to women, men tend to place greater value on sources involving direct social comparisons (e.g., professional networks) than more aggregate, general sources (e.g. websites). A controlled experiment was then conducted using a hypothetical job offer negotiation to determine whether framing salary information in terms of social comparison moderates gender gaps in salary requests. The results revealed that men requested higher salaries than women when presented with upward social comparison information (i.e., what a more qualified employee earns), but not downward (i.e. what a less qualified employee earns) or lateral comparison information (i.e., what a similarly qualified employee earns). These effects were driven by heightened competitiveness among men. Further, both men and women experienced the greatest boost in competitiveness and salary requests when given downward social comparison information. Overall, salary information is effective in reducing gender gaps, but the effects depend on the social comparison inherent to the information.

Does Hoodwinking Others Pay? The Psychological and Relational Consequences of Undetected Negotiator Deception

Alex B. Van Zant, Jessica A. Kennedy, & Laura J. Kray
Personality and Social Psychology 124(5): 1001-1024 (May 2023)

Lies often remain concealed, and we know little about the psychological and relational consequences of successfully misleading others. Although existing research suggests that undetected dishonesty can lead to positive emotions on independent tasks, the authors find across four studies that despite enabling negotiators to strike better deals, it invokes guilt and undermines satisfaction with the negotiation experience. This trend held irrespective of the magnitude of negotiators' incentives and their moral character. It also held for self-initiated lies and those done to comply with others’ orders. Notably, larger incentives amplified the extent to which dishonesty elicited guilt. Furthermore, dissatisfaction arising from dishonesty-induced guilt had repercussions for future relationships: It reduced deceivers’ likelihood of choosing to interact again with the same counterpart and negatively affected their satisfaction in subsequent negotiations with that counterpart.

“What is Your Best Price?”—An Experimental Study of an Alternative Negotiation Opening

Wolfram Lipp, Peter Kesting, & Remigiusz Smolinski
Negotiation Journal 39(2): 175-206 (Spring 2023)

Much attention has been devoted to the “first offer” in negotiation research, and strong empirical evidence shows that the first offer has a significant impact on the negotiated outcome. Scholars typically recommend making the first offer. However, in the field, the authors have observed an alternative opening tactic — asking for the best price that the counterpart is willing to accept. This question represents a real alternative to making the first offer by initiating the discussion of specific settlement proposals. Does it, however, lead the counterpart to make a better offer? How does the question impact the economic and relational outcomes of the negotiation? Should people use this tactic? The authors investigated these questions with a controlled laboratory experiment, in which 227 dyads of cellphone buyers and sellers negotiated synchronously via a text chat. They found that the best-price question changes negotiation behaviors and outcomes. Furthermore, the first offer after the question predicts the final negotiation outcome, regardless of whether it comes from the buyer or the seller; this replicates the findings related to the anchoring effect for elicited first offers. Additionally, the authors found that the best-price question did not negatively impact the relational outcome. Moreover, the effect was reduced when list price information was available. These findings suggest rethinking the traditional view of the offer-counteroffer sequence and provide an alternative opening tactic to making the first offer in the context of high information asymmetry.

Low Power, First Offers, and Reservation Prices: Weak Negotiators are Self-anchored by Their Own Alternatives

Yossi Maaravi, Ben Heller, & Aharon Levy
Negotiation Journal 39(1): 7-34 (Winter 2023)

Although most scholars recommend making the first offer in negotiations, recent research has uncovered a second-mover advantage in certain situations. The authors explore this first- versus second-mover dynamic by investigating the circumstances where negotiators would make less favorable first offers than they would receive were they to move second. Additionally, the authors examine the effects of low power on reservation prices and whether these effects could be mitigated using an anchor-debiasing technique. In Study 1, negotiators' power in the form of the best alternative to the negotiated agreement was manipulated and its effect on first offers and reservation prices examined. The results showed that low-power negotiators would receive more favorable first offers than they would have made themselves when facing either low- or medium-power counterparts. Also, the results suggest that low-power negotiators had less favorable reservation prices than their medium- and high-power counterparts. In Study 2, the authors investigated whether this effect would persist in the face of anchor-debiasing techniques. The results showed that while anchor-debiasing techniques did improve their first offers, low-power negotiators would still benefit from making the counteroffer rather than moving first. These findings uncover the disadvantageous effects of low power on first-offer magnitude while offering practical advice to negotiators.

Persuasion and Decision-Making

How Verb Tense Shapes Persuasion

Grant Packard, Jonah Berger, & Reihane Boghrati
Journal of Consumer Research 50(3): 645-660 (October 2023)

When sharing information and opinions about products, services and experiences, communicators often use either past or present tense (e.g., “That restaurant was great” or “That restaurant is great”). Might such differences in verb tense shape communication’s impact, and if so, how? A multimethod investigation demonstrates that using present tense can increase persuasion. Natural language processing of over 500,000 online reviews in multiple product and service domains, for example, illustrates that reviews that use more present tense are seen as more helpful and useful. Follow-up experiments demonstrate that shifting from past to present tense increases persuasion and illustrate the underlying process through both mediation and moderation. When communicators use present tense, it suggests they are more certain about what they are saying, which increases persuasion. These findings shed light on how language impacts consumer behavior, highlight how a subtle yet central linguistic feature shapes communication and have clear implications for persuasion across a range of situations.

Can You Trust Your Lawyer's Call? Legal Advisers Exhibit Myside Bias Resistant to Debiasing Interventions

Mihael A. Jeklic
Journal of Empirical Legal Studies 20(2): 409-433 (June 2023)

In most disputes, settlement is superior to litigation (which involves uncertainty, legal fees and opportunity cost). Major contributors to the lack of settlement include intransigent litigants who harbor overoptimistic predictions of litigation outcomes. This study found significant myside bias in the lawyers' predictions of a judicial award (claimants' advisers expected awards that were 69% higher than defendants' advisers) and in their evaluation of arguments (both sides thought the arguments supporting their side were 30% more convincing than the arguments supporting their counterparty). Debiasing interventions — alerting to the myside bias, considering the perspective of the counterparty and dialectical bootstrapping — reduced, but did not eliminate, the bias. Exploratory investigation indicated that a large proportion of advisers exhibited naïve realism and bias blind spot, and that cognitive reflection provided a limited measure of resistance to myside bias.

James Coben

Mitchell Hamline’s Dispute Resolution Institute

James Coben is professor emeritus at Mitchell Hamline School of Law and a senior fellow at Mitchell  Hamline’s Dispute Resolution Institute. He can be reached at [email protected].

Nadja Alexander

Singapore International Dispute Resolution Academy

Nadja Alexander is professor of law at Singapore Management University and director of the Singapore International Dispute Resolution Academy (SIDRA). She can be reached at [email protected].

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