Empirical Analysis of De-Biasing
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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 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.
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.
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