Jim Stark and Doug Frenkel just became scholars-in-residence with the International Academy of Mediators, following in the footsteps of Hal Abramson, Lela Love, and Dwight Golann.
I have appreciated Doug and Jim’s work – actually of all the SiRs – and this post describes some of the things I appreciate about it. It also includes a photo album from a fascinating tour of the Occupied Palestinian Territories that Doug arranged for my wife and me. His ability to arrange this tour is a reflection of his commitment to peace and reconciliation.
Empirical Analysis of De-Biasing
Many faculty are familiar with Doug and Jim’s popular textbook, The Practice of Mediation: A Video-Integrated Text.
I have been impressed by their scholarship, particularly two articles: Improving Lawyer’s Judgment: Is Mediation Training De-Biasing?, 21 Harvard Negotiation Law Review 1 (2015), and Changing Minds: The Work of Mediators and Empirical Studies of Persuasion, 28 Ohio State Journal on Dispute Resolution 263 (2013). They received CPR’s award for best professional article for Changing Minds and honorable mention for De-Biasing.
Although Doug and Jim are not social scientists, both articles rely on creative use of a wide variety of empirical studies. The studies generally aren’t focused on legal dispute resolution – they are about fields as diverse as advertising, disease prevention, race relations, and politics – but they make appropriate, insightful, and practical inferences about how the findings might apply to our work.
Their article on bias and de-biasing is relevant to us because so much of negotiation and mediation of legal cases routinely involves very biased assessments of BATNA values and efforts to de-bias these assessments. They note that the famous Kiser et al. study, Let’s Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiations, found that the rates and magnitude of decision error were reduced in cases involving lawyers who self-identified as having had mediation training and experience. This suggests that lawyers and law students benefit from mediation training for work as advocates, not just as neutrals. This prompted Doug and Jim to try to figure out what about mediation training might reduce lawyers’ biases. After reviewing the evidence, they reached the following conclusion:
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.
Of course, this is not definitive (as virtually no theory or data can be), but it makes sense and is pretty darn practical. Their analysis is not shocking as many mediators intuitively use these techniques. But it’s encouraging to see the empirical support for these intuitions and theories.
Jim subsequently published an article on de-biasing, Towards a Better Understanding of Lawyers’ Judgmental Biases in Client Representation: The Role of Need for Cognitive Closure, 59 Washington University Journal of Law & Public Policy 173 (2019), with Maxim Milyavsky, an Israeli social psychologist. They found that law students differ greatly in their susceptibility to optimistic overconfidence and the use of self-serving norms of fairness when placed in a partisan role. These differences are highly correlated with their relative need for cognitive closure (NFC), a scale of tolerance for ambiguity versus the desire to make quick decisions. Even high-NFC students can be trained to be less overconfident if given a simple consider-the-opposite (CTO) de-biasing prompt (“list the weaknesses in your case”). However, this CTO prompt did nothing to reduce biased assessments of what a “fair negotiation outcome” would be “irrespective of the arbitrator’s award.” In other words, the law students seemed to distinguish between the most likely outcome and the outcome that appeared most just from their self-serving perspectives.
Empirical Analysis of Persuasion
In Changing Minds, Jim and Doug venture into the controversial subject about what mediators can do to help parties move from disputes to resolution. They note that this is controversial because some people believe that it’s unethical for mediators to attempt to persuade parties. But they point out that mediators routinely engage in persuasion by building rapport, advocating processes, helping counter cognitive biases, and changing attitudes about the other side. Even “merely” asking questions can be a form of persuasion, for example, if mediators ask repeated questions about a party’s position or use a skeptical tone of voice.
In Changing Minds, they examine a ton of techniques including orchestrating role reversals and apologies, brainstorming, and using one-sided versus two-sided statements, more or less explicit messages, fear and guilt, and a sequence of requests as opposed to a single request.
They provide nuanced analyses that are too detailed to summarize here. Read the article for their valuable insights.
Seeds of Peace in the Occupied Palestinian Territories
In January 2014, Doug and I and our wives happened to be in Israel at the same time. Doug and Marlene have supported an inspiring organization called Seeds of Peace, which promotes reconciliation between Israelis and Palestinians (and other neighboring groups around the world in protracted conflicts). Doug and Marlene had arranged for a Palestinian staffer named Mohammed to give them a tour, and they invited Ann and me to join them. Americans generally get only information biased in favor of Israel and against the Palestinians, so I was very interested to get a first-hand view of my own.
Most of our time was in Ramallah, which is the center of political, diplomatic, and commercial activity in the occupied West Bank. I was expecting to see a very dilapidated area and was amazed to find a lot of new construction and very nice buildings. This seemed to be a city with a comfortable middle class and lots of shops and restaurants. I’m sure that in many other areas, people are much poorer.
We stopped at the memorial for Yasser Arafat, who is widely considered a revolutionary hero, and we saw photos of him plastered all over town. Just behind the memorial was a large, modern building that is the headquarters of the Palestinian Authority. It was built on the rubble of Arafat’s bunker that was shelled by the Israelis before he died.
Apparently the political and economic relationships in the West Bank involve a lot of corruption, which causes a lot of cynicism by Palestinians. Mohammed said that most of the economy in the West Bank involves importing and exporting through Israeli companies, leading to Palestinians’ feelings of powerlessness, as another form of control by Israel.
We spent some time at the Seeds of Peace office, and were joined by a young man named George, who had been a camper in the program. We talked a lot about the attitudes of the various groups, and I asked if there is any deal that they would support in which they would drop all future claims against Israel. Mohammed and George talked about this as “normalization,” which they could not accept because they could not imagine Israel agreeing to all the things they think would be needed to justify dropping such claims. Mohammed said that if Israel would apologize for evicting the Palestinians in 1948, it would go a long way to help resolve the conflict, though presumably that would not be enough for him.
Mohammed drove us back to Jerusalem through a VIP checkpoint, which he was able to use because of his status with Seeds of Peace. It was empty and the guards were relaxed. He drove us back to the entrance to the Palestinian territory so that we could see a warning sign that read: “This road leads to Area A under the Palestinian Authority. The entrance for Israeli citizens is forbidden, dangerous to your lives, and is against the Israeli law.” Mohammed was offended by this sign because it implied that Palestinians are a dangerous people. He said that to drive into Israel, Palestinians have to go through checkpoints where the atmosphere is a lot more tense and people have long waits.
We turned around and got on a nice road back to Jerusalem. He said that this was a good road built as a shortcut for settlers in the West Bank to quickly get to the Israeli mainland.
Pictures are worth thousands of words, so take a look at these shots I took on our visit.