Arbitration
Compliance With and Enforcement of ICSID Awards
The purpose of this paper is to provide a comprehensive overview of the ICSID Convention’s regime governing compliance with, and recognition, enforcement, and execution of an ICSID Convention Award (“ICSID Award” or “Award”). The paper complements other Background Papers which have examined the functioning of the ICSID Convention, such as the Background Paper on Annulment. It responds to the interests of stakeholders in understanding what happens after an Award has been rendered and any post-award proceedings are concluded. The research includes a study of: (i) compliance with and enforcement of ICSID Awards with pecuniary obligations (Chapter II); and (ii) domestic decisions on recognition, enforcement, and execution of ICSID Awards (Chapters VI and VII, Annexes A and B).
Highlights of the paper are as follows:
- A review of 124 publicly available domestic court decisions and orders shows that an overwhelming majority of courts recognize and enforce ICSID Awards
- In practice, few Awards go to enforcement proceedings, as in the majority of cases parties voluntarily comply with Awards or reach post-award settlements.
- Looking at all 151 Awards in the study that awarded damages to a party (“Damages Awards”), award creditors obtained satisfaction through voluntary compliance or post-award settlements in 66% of cases, while 31% went to enforcement and in 3% enforcement was not pursued.
- The study also shows that award creditors are less likely to pursue enforcement of Awards that award costs only and not damages (“Costs Awards”). Award creditors did not pursue enforcement in relation to 30% of 80 Costs Awards. These awarded significantly lower amounts than the Damages Awards, with 35% of Costs Awards being below USD 1 million.
Fighting Mass Arbitration: An Empirical Study of the Corporate Response to Mass Arbitration and Its Implications for the Federal Arbitration Act
Richard Frankel
78 Vanderbilt Law Review (forthcoming 2025); an older version of the article is currently available at SSRN here or here.
This article provides an empirical study of the arbitration clauses of 106 large consumer-facing companies. It reveals that most companies require claimants to exhaust “pre-arbitration” procedures prior to initiating an arbitration. Others have created “batching” protocols, where selected cases are arbitrated in sequential groups while all other cases are stayed, followed by mandatory settlement conferences. Some have changed arbitration providers or chosen providers who use different fee models, and a small but growing number are banning mass arbitration entirely.
The findings have important implications. First, these new provisions have claim-suppressing effects. Pre-arbitration requirements make it easier for companies to dismiss claims if those requirements are not satisfied. Arbitrating claims in sequential batches delays proceedings and forces claimants to wait longer to seek relief. Second, the corporate response to mass arbitration—adding provisions that inject procedural complexity and aggregate decision-making—transforms arbitration to such a degree that it is no longer arbitration as covered by the Federal Arbitration Act (FAA). This is significant because it allows state governments to regulate mass arbitration without being preempted by the FAA. States should act to rein in defendants’ attempts to use arbitration to shield themselves from accountability.
Around the World
Alternative Dispute Resolution Research Landscape from 1981 to 2022
Fabio Batista Mota, Luiza Amara Maciel Braga & Bernardo Pereira Cabral
Group Decision and Negotiation 32(6): 1415-1435 (December 2023)
Alternative dispute resolution (ADR) is an important means of resolving disputes outside of traditional legal frameworks. It is usually adopted because of its flexibility, cost-effectiveness, and ability to preserve relationships that a contentious court battle might damage. This study aims to evaluate the scientific publication related to ADR. To do so, the authors used metadata of ADR-related articles from 1981 to 2022 collected in the Web of Science Core Collection and carried out a bibliometric, network, and latent Dirichlet allocation analysis. The results indicate that ADR research is concentrated in North America, with research organizations from the United States accounting for most publications. At the same time, recent years have seen a shift to a more diverse group of countries, with the Chinese City University of Hong Kong and the Australian Victoria University leading in the last five years. The five main topics in ADR research include online dispute resolution for consumer protection, mediation for family law, arbitration in medical malpractice cases, ADR in construction projects, and ADR in employment law. The most frequent research areas assigned to ADR publications are Government & Law and Business & Economics. Network results show keywords ADR, Mediation, and Arbitration as central nodes, while the Chinese and North American organizations established the most frequent collaborations, addressing ADR applications in various sectors. The findings underscore the interdisciplinary nature of ADR research, its adaptability across industries, and the importance of cross-cultural research partnerships.
Gender, Race & Culture
He Said, She Said: Gender Differences in the Disclosure of Positive and Negative Information
Erin Carbone, George Loewenstein, Irene Scopelliti & Joachim Vosgerau
Journal of Experimental Social Psychology 110: Article 104525 (January 2024)
Research on gender differences in (self-)disclosure has produced mixed results, and, where differences have emerged, they may be an artifact of the measures employed. The present paper explores whether gender – defined as self-identified membership in one's sociocultural group – can indeed account for differences in the desire and propensity to divulge information to others. The authors additionally identify a possible moderator for such differences. In three studies employing two distinct research approaches – a free recall task for the extreme desire to disclose (Study 1, N = 195) and scaled responses to scenarios that manipulate valence experimentally in an exploratory study (Study 2, N = 547) and a preregistered replication (Study 3, N = 405) – the authors provide evidence of a robust interaction between gender and information valence. Male participants appear similar to female participants in their desire and likelihood to disclose positive information but are less likely than women to want to share negative information with others, and less likely to ultimately act on that desire. Men are reportedly more motivated than women to disclose as a means of self-enhancement, and self-reports reveal that women perceive their sharing behavior to be relatively normative, while men believe themselves to be more withholding than what is optimal. Information disclosure is increasingly pervasive and permanent in the digital age, and is accompanied by an array of social and psychological consequences. Given their disparate disclosing behaviors, men and women may thus be differentially advantaged by, or susceptible to, the positive and negative consequences of information sharing.
Listening
Listening to Understand: The Role of High-Quality Listening on Speakers’ Attitude Depolarization During Disagreements
Guy Itzchakov, Netta Weinstein, Mark Leary, Dvori Saluk & Moty Amar
Journal of Personality and Social Psychology 126(2): 175-212 (February 2024)
Disagreements can polarize attitudes when they evoke defensiveness from the conversation partners. When a speaker talks, listeners often think about ways to counterargue. This process often fails to depolarize attitudes and might even backfire (i.e., the Boomerang effect). However, what happens in disagreements if one conversation partner genuinely listens to the other’s perspective? The authors hypothesized that when conversation partners convey high-quality listening—characterized by attention, understanding, and positive intentions—speakers will feel more socially comfortable and connected to them (i.e., positivity resonance) and reflect on their attitudes in a less defensive manner (i.e., have self-insight). Further, the authors hypothesized that this process reduces perceived polarization (perceived attitude change, perceived attitude similarity with the listener) and actual polarization (reduced attitude extremity). Four experiments manipulated poor, moderate, and high-quality listening using a video vignette (Study 1) and live interactions (Studies 2–4). The results consistently supported the research hypotheses and a serial mediation model in which listening influences depolarization through positivity resonance and nondefensive self-reflection. Most of the effects of the listening manipulation on perceived and actual depolarization generalized across indicators of attitude strength, specifically attitude certainty and attitude morality. These findings suggest that high-quality listening can be a valuable tool for bridging attitudinal and ideological divides.
Active Listening in Integrative Negotiation
Elisabeth Jäckel, Alfred Zerres & Joachim Hüffmeier
Communication Research (2024)
Active listening is a promising communication technique to positively affect interactions and communication outcomes. However, theoretical propositions regarding its direct effects on interactions have rarely been empirically investigated. In the present research, the authors studied the role of naturally occurring active listening in the context of videotaped and coded integrative negotiations. Lag sequential analyses of 48 negotiations with 17,120 thought units show that active listening follows offers that comprise two or more issues (i.e., multi-issue offers) above chance level. These multi-issue offer active listening patterns in turn promoted integrative statements (e.g., further multi-issue offers) and inhibited distributive statements (e.g., single-issue offers). Moreover, multi-issue offer active listening patterns (and neither multi-issue offers nor active listening alone) also positively related to the achieved joint economic outcomes in the negotiation. Contrary to common expectations, the authors did not find evidence that active listening promotes the understanding of the other party or rapport between negotiators.
Mediation
Mediators’ Views of What Can Be Achieved Better in Initial Joint Sessions and in Initial Separate Caucuses
Roselle Wissler & Art Hinshaw
Washington University Journal of Law and Policy 70: 235-262 (2023)
Over the past decade, the structure of the first formal mediation session has changed, with fewer traditional joint opening sessions and more separate caucuses to start the mediation. In light of these changes, the present article explores whether mediators still see these two approaches as having the benefits conventionally ascribed to them, or whether they now see different advantages for each approach. The survey responses of over 700 experienced civil and family mediators from eight states show that mediators see several major differences in what can be better achieved in initial joint sessions and initial separate caucuses, respectively. Consistent with conventional wisdom, mediators said that initial joint sessions allow the parties to speak directly to and be heard by each other, and to develop a better understanding of the mediation process and the dispute, while initial separate caucuses permit the mediation to proceed when the parties are unable to mediate together civilly or meaningfully. Mediators noted multiple additional benefits associated with both parties hearing the same information at the same time in initial joint sessions, which previously have received little comment in the literature. Interestingly, mediators ascribed several other benefits to both initial joint sessions and initial separate caucuses, though generally for different reasons. Civil and family mediators differed in how often they mentioned some of the benefits for each approach. The present findings may encourage mediators and mediation trainers to revisit their views about the benefits they typically associate with initial joint sessions and initial separate caucuses and to weigh a broader set of considerations with the parties and lawyers. This will allow them to decide how to begin the initial mediation session to better tailor the mediation process to the needs of the particular case.
Negotiation
But What If I Lose the Offer? Negotiators’ Inflated Perception of Their Likelihood of Jeopardizing A Deal
Einav Hart, Julia B. Bear & Zhiying (Bella) Ren
Organizational Behavior and Human Decision Processes 181: Article 104319 (March 2024)
When deciding whether to negotiate, individuals typically assess any potential costs of negotiation. The authors propose that one major cost that individuals are concerned about, particularly in the context of job offers, is an offer being withdrawn from the bargaining table—losing out on a deal entirely. The authors refer to this heretofore unexamined concern as the perceived likelihood of jeopardizing a deal by negotiating. They investigate job candidates’ perceived likelihood of jeopardizing a deal, as compared to hiring managers’ reports, across seven studies (total N = 3,338), including surveys of academic job candidates and members of academic hiring committees, managers and hiring professionals, and experimental studies with interactive, incentivized negotiations conducted both in person and online. The paper consistently documents that job candidates’ perception of the likelihood of jeopardizing a deal is exaggerated, i.e., discrepant with that of the hiring side. In some cases, this perception is associated with negotiation avoidance. The authors also theorize and find support for two underlying psychological mechanisms: zero-sum perceptions and psychological power. They further document contextual factors that decrease candidates’ zero-sum perceptions or increase their perceived power, which, in turn, diminish (but do not fully eliminate) the discrepancy between candidates’ and managers’ perceptions of the likelihood of jeopardizing a deal.
Choosing Not to Get Anchored: A Choice Mindset Reduces the Anchoring Bias
Krishna Savani & Monica Wadhwa
Journal of Experimental Social Psychology 111: Article 104575 (May 2024)
In negotiations, first offers serve as potent anchors. After receiving a first offer, although people clearly have a choice about what amount to counteroffer, they often fail to adjust away from the first offer. The authors identify a simple nudge, a reminder that people have a choice, that can reduce the anchoring bias. They argue that a choice nudge leads people to think of more potential counteroffers that they can make, which reduces the extent to which they are anchored to the first offer. Seven studies conducted with US residents recruited from online research platforms tested this hypothesis. The authors found that merely reminding buyers that they have a choice led them to anchor away from sellers' first offers in a painting buying task (Studies 1 and 2) and a used car negotiation (Study 3). A choice reminder nudged people to consider more counteroffers (Study 4a) and asking people to consider more counteroffers reduced the anchoring bias (Study 4b). Consistent with the idea that thinking of counteroffers requires cognitive resources, the authors found that the effect of a choice nudge is attenuated under high cognitive load (Study 5). Study 6 ruled out an alternative motivational account for the choice nudge effect. This research contributes to the choice mindset literature by showing that highlighting the semantic concept of choice can help correct a pervasive decision-making bias, and to the anchoring literature by showing that thinking of more counteroffers can reduce the anchoring bias, at least in contexts in which the direction of adjustment from the anchor is known.
Persuasion And Decision-Making
You Versus We: How Pronoun Use Shapes Perceptions of Receptiveness
Mohamed A. Hussein & Zakary L. Tormala
Journal of Experimental Social Psychology 110: Article 104555 (January 2024)
In response to increasing societal divisions, an extensive literature has emerged examining the construct of receptiveness. This literature suggests that signaling receptiveness to others confers a variety of interpersonal benefits, such as increased persuasiveness. How do people signal their receptiveness to others? The current research investigates whether one of the most fundamental aspects of language—pronoun use—could shape perceptions of receptiveness. The authors find that in adversarial contexts, messages containing second-person pronouns (“you” pronouns) are perceived as less receptive than messages containing first-person plural pronouns (“we” pronouns). The authors demonstrate that “you” pronouns signal aggressiveness, which reduces perceived receptiveness. Moreover, the paper documents that perceived receptiveness influences important downstream consequences such as persuasion, interest in future interaction, sharing intentions, and censorship likelihood. These findings contribute to a fast-growing literature on perceived receptiveness, uncover novel consequences of signaling receptiveness, and contribute to our understanding of how pronouns shape social perception.
An Evaluation of Remote Child Custody Mediation in San Mateo County, California
Daisy Ni
Family Court Review 62(2): 359-371 (April 2024)
The COVID-19 pandemic forced courts to virtualize proceedings almost overnight, resulting in both an array of new technological tools as well as important questions about their long-term effects. This article studies the impact of the shift from in-person to remote child custody and visitation mediation in San Mateo County, California. Through surveys with parents, interviews with mediators and parents, and participation and outcome data, it captures the early experiences and results associated with remote mediation. The key findings are:
- Administrative data from the first two years of the pandemic indicated that participation rates increased while agreement rates decreased after mediation sessions became remote.
- Both the quantitative and qualitative components have revealed that remote platforms can offer benefits such as greater accessibility, comfort, safety, reduced tension, and the use of technological features.
- Drawbacks, on the other hand, include the loss of non-verbal cues and the corresponding diminished ability to communicate, uncertain confidentiality, increased distractions, and technical difficulties.
The study seeks to enable courts to better understand the obstacles and opportunities that arise from online platforms and inform future policy-making on the use of technology in their practices.
What Matters to Employment Attorneys When Considering Online or In-Person Mediation?
41 Alternatives to the High Cost of Litigation 41: 151-158 (Nov. 2023)
Deborah Thompson Eisenberg, Donna Shestowsky & Robert Niccolini
During the pandemic, most employment mediations pivoted to online videoconferencing platforms such as Zoom and Teams. This study adds to the growing literature about how mediation format affects the process and outcome of mediation. 174 attorneys were surveyed about their experiences with online and in-person mediation in single-plaintiff employment cases over a one-year period. Overall, the results suggest that most employment attorneys were generally comfortable with both online and in-person mediation formats and did not perceive substantial differences in process or outcome. Specifically, attorneys evaluated online and in-person mediation comparably on distributive and procedural justice measures. These findings imply that online mediation, in a general sense, closely parallels traditional in-person mediation. Further the findings suggest that attorneys are generally comfortable with online mediation in the post-pandemic age. Based on coding of attorney open-ended responses about their future mediation format recommendations, the factors that favor a recommendation for online mediation include convenience, cost effectiveness, savings on travel time and money, efficiency, and client comfort or safety. The factors that favored a recommendation for in-person mediation included a perception of greater engagement in that format, a belief that the case is more likely to settle or obtain a better outcome if in-person, and attorney preference for in-person. These and other results provide a nuanced glimpse into attorney perceptions of the two modalities, as well as the factors that might influence attorney advice to clients about whether to use in-person versus online mediation.
Building Negotiator Trust Through Social Presence – Effects of Communication Media and Information Reprocessability on Trust in Negotiations
Dominik Sondern & Guido Hertel
Negotiation and Conflict Management Research 16(4): 267-289 (2023)
Despite the growing prevalence of digital communication, computer-mediated negotiations have a negative reputation in scientific research. However, extant studies focused predominantly on lean communication technologies (e.g., email). The authors examined effects of communication media on trust and negotiation outcomes considering current-state technologies with rich information transmission (i.e., video conferencing). Based on communication and trust theories, the authors expected that video-based, as compared to face-to-face, negotiations lead to lower trust due to perceptions of lower social presence, higher psychological distance, and higher risk in video conferences. However, they also expected information reprocessability as a technological feature to reduce risk perceptions and thereby the negative effect of communication medium. In a preregistered experimental study (n = 320), dyads negotiated a work contract. Communication medium (face-to-face or video conference) and information reprocessability (not videotaped or videotaped) were manipulated in a between-subject design with time (pre-negotiation or post-negotiation) as an additional within-subject factor. Perceived risk, psychological distance, and social presence were measured as mediating processes. Consistent with the authors’ hypotheses, communication medium affected trust indirectly via social presence. However, the overall differences between communication media regarding trust, economic outcomes, and negotiation time were not significant. Together, the findings suggest that face-to-face and computer-mediated negotiations can yield quite similar results when using rich communication media.