## Is Mediation Training De-Biasing? - Harvard Negotiation Law Review

Mar 31, 2016 - jury, environmental and employment law, to name just a few) are polarized, with ... habits of thought and behavior from one domain to another. Even if it ..... premium to convert a strong possibility into a certainty.42 Dispute.
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Improving Lawyers’ Judgment: Is Mediation Training De-Biasing? Douglas N. Frenkel* & James H. Stark** 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 * Morris Shuster Practice Professor of Law and Director of the Mediation Clinic, University of Pennsylvania Law School. * Roger Sherman Professor of Law and Director of the Mediation Clinic, University of Connecticut School of Law.

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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.

CONTENTS I. II. III. IV.

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Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Biases Affecting Lawyers’ Judgment When Acting in a Representative Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . How Mediators are Trained to Think and Act, and What is Unique About Their Role . . . . . . . . . . . . . . . . . . . . De-Biasing by “Considering the Opposite” . . . . . . . . . . . . A. “Consider the Opposite” and Legal Disputing . . . . . B. Mediation Questions and Applications . . . . . . . . . . . . De-Biasing Through Perspective-Taking . . . . . . . . . . . . . . A. Perspective-Taking and Lawyering: Negotiation Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Perspective-Taking and the Anchoring Bias . . . . . . . C. Perspective-Taking and the “Fixed Pie” Bias . . . . . . D. Mediation Questions and Applications . . . . . . . . . . . . General Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Limitations of Current Research and Possible Topics for Future Study . . . . . . . . . . . . . . . . . . . . . . . . . . B. Will Mediation Training Transfer to Representational Lawyering? . . . . . . . . . . . . . . . . . . . . . C. Curricular Implications for Law Schools and Clinical Programming . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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