Frenkel and Stark on Mediation and Debiasing

Doug Frenkel (Pennsylvania) and Jim Stark (Connecticut) recently published “Improving Lawyers’ Judgment: Is Mediation Training De-Biasing?” in the Harvard Negotiation Law Review, available here. The abstract:

When people are placed in a partisan role or otherwise have an objective they seek to accomplish, they are prone to pervasive cognitive and motivational biases. These judgmental distortions can affect what people believe and wish to find out, the predictions they make, the strategic decisions they employ, and what they think is fair. A classic example is confirmation bias, which can cause its victims to seek and interpret information in ways that are consistent with their pre-existing views or the goals they aim to achieve. Studies consistently show that experts as well as laypeople are prone to such biases, and that they are highly resistant to change, in large part because people are generally unaware that they are operating.

When they affect lawyers, egocentric, partisan and role biases can hinder the ability to provide objective advice to clients, lead to overly optimistic forecasts about the probability of future events, and promote “we-they” thinking that can exacerbate and prolong conflicts, imposing substantial costs on both clients and society.

There is reason to believe that by placing people in a mediative stance — one in which people impartially try to help disputants resolve a conflict — they can develop habits of objectivity crucial to much of what lawyers are called upon to do. That this is so is supported by social science research on two specific strategies for de-biasing judgment — considering alternative scenarios and taking another’s perspective — both core mediator mindsets. Research also shows that active engagement in such de-biasing activity is more effective in achieving objectivity than is mere instruction about the existence of cognitive biases. The authors consider the implications of this research for law school clinical programming and legal education in general.

One thought on “Frenkel and Stark on Mediation and Debiasing”

  1. This topic sounds fascinating. I think often times people try to shy away from biases and not admit it when they are bias. But as this abstract suggested internal bias is implicit in everyone. Bias in a mediator who is perceived to be a neutral actor can be detrimental to the mediation process. I think it is especially important for an attorney who wants to take on the role as mediator to understand this concept and actively work to eliminate any potential bias. The abstract states that expert and lay people are resistant to change because they are “unaware” that they are operating in a bias mentality. Most are unaware of the even the most common cognitive biases that we operate in almost daily such as confirmation bias, projection bias, and the anchoring effect. All of these biases can prevent us from being rational and making the best choices. Attorney’s, often times regarded as the expert in a dispute or situation, I believe may possible see these biases in their clients but neglect to see them in themselves. Which could potentially prevent an attorney from making a sound rational decision when giving advice.

    It is also interesting that the abstract suggest that by placing people in the position of a mediator they naturally try to be neutral and objective. This research sounds fascinating and I imagine the case studies are interesting stories. I think it is interesting that the abstract also includes the phrase “consider alternative scenarios and taking another’s perspective” because from a young age majority of us are taught to put ourselves in another’s shoes. You would think by the time we become adults this attitude and practice would be second nature.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.