In August 2008, I posted a blog entitled “Make the Deal: You Are Better Off,” discussing a study which concluded that settling was better than going to trial.

Last week, I came upon another study which indirectly supports this earlier conclusion. Entitled “Insighful or Wishful: Lawyers’ Ability to Predict Case Outcomes,”(study) the researchers concluded that “overall, lawyers were overconfident in their predictions . . .” about success at trial and that the accuracy of their predictions “. . . did not increase with years of legal experience.” (16 Psychology, Public Policy, and Law, pp. 133-157, 133 ((No. 2.) 2010) “Study”).

The researchers were Jane Goodman-Delahunty, Charles Sturt University, Manly, New South Wales, Australia; Pär Anders Granhag, University of Gothenburg, Gothenburg, Sweden; Maria Hartwig, John Jay College of Criminal Justice, New York and Elizabeth F. Loftus, University of California at Irvine,California (“Researchers”).

The goal of the study was to assess “the degree of accuracy in lawyers’ forecasts of case outcomes.” (Id. at p.134). To do this, the Researchers interviewed 481 litigation attorneys including new lawyers and very experienced lawyers, in 44 states across the United States, representing both plaintiffs and defendants in civil and criminal matters. The civil practitioners comprised about 70% of the study while the criminal practitioners represented the remaining 30%. (Id. at pp. 138-140.)

The Researchers interviewed each participant approximately 6 to 12 months prior to the date that a case was expected to go to trial and then interviewed them again after the date that the case was expected to go to trial. The goal was to compare the lawyer’s prediction about the likelihood of success at trial with the actual outcome. (Id.)

Although, at the beginning, the study consisted of 337 civil cases and 144 criminal cases, the Researchers found, not surprisingly, that a large number – 59% – of the cases settled prior to trial (e.g., about  284 cases)  while only 31% were actually tried (e.g., about 149 cases). The remaining 10% were resolved by means of summary judgment, dismissal or some procedure other than trial. (Id. at pp. 139-140).

As might be expected, prior to trial, more than 50% of the lawyers opined that a favorable outcome would be reached. In reality, the outcome matched the expectation in only 32% of the cases. The outcome exceeded the expectation in 24% of the cases. But, in 44% of the cases, the lawyer was overconfident; the outcome did not meet the lawyer’s prediction. (Id. at pp. 140-141).

The Researchers also looked at the lawyers’ predictions in terms of gender: men outnumbered women four to one in the study (361 male attorneys vs. 90 female attorneys). When asked initially to predict the outcome at trial 6-12 months away, the female attorneys were just as optimistic as their male counterparts. (Id. at p. 141-142).

However, when the Researchers compared the prediction with the outcome, they found that more female attorneys achieved their minimum goal than did their male counterpart (64% vs. 55%) (Id. at p. 143). In general, what the Researchers concluded was that female attorneys were overconfident about their chances of winning at trial only when their prediction of success was high overall. Female attorneys had a much better ability (than male attorneys) to discern whether they had a moderate versus a high probability of success in winning at trial. (Id. at pp. 143).

The Researchers also determined that years of experience did not make much of a difference. The range of experience of the lawyers in the study was from 0 to 45 years. Both the less experienced lawyers and the more experienced lawyers were prone to be overconfident about their chances of winning at trial. (Id. at pp. 143-144).

Similarly, the Researchers determined that the confidence of the attorneys did not differ depending on whether  the case was a civil or criminal matter: the prediction of success at trial was about the same for both groups. (Id. at p. 145). However, where the crimes were victimless, that is, against property, the Researchers found that the lawyers were more realistic in estimating their chances of success than lawyers involved in crimes against persons. (Id. at p. 145).

In sum, when a lawyer predicts the outcome of a trial, there is a 44% chance that he is being too optimistic, . . .unless she is a woman – then chances are that she will be less overconfident and more discerning of her likelihood of success at trial.

So. . . when you are at a negotiation and your lawyer tells  you that you have a “great” chance of winning at trial. . .  take it with a grain of salt. According to this study, there is a good chance that the lawyer is being overly optimistic and overconfident!

. . . Just something to think about!

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      Recently, LiveScience.com published an article entitled “Why ‘Sleeping On It’ Helps” by John M. Grohol, PSYD. The thesis of the article is that “the brain makes good unconscious decisions when we let it” (p. 2).

      According to Dr. Grohol:

      “Previous research suggests that sometimes the more consciously we think about a decision, the worse the decision made. Sometimes what’s needed is a period of unconscious thought – equivalent to “sleeping on it” . . . in order to make better decisions” (p. 1).

        To study this phenomenon, researchers conducted experiments. The results led them to believe that unconscious thought is actually an “active, goal-directed thought process.” But unlike conscious thought, the usual biases are absent, so that we weigh the different components more equally; our preconceptions are not considered by our unconscious. That is, “unconscious thinkers seem to be better at using appropriate information to arrive at” (p.2) their decision:

      “The researcher hypothesize that conscious thought can lead to poor weighting in decision-making – the more you think about something, the more your biases interfere with good decision-making” (p. 2).

       A moment’s reflection will reveal how this relates to mediation. “Sleeping on it” is actually counter-intuitive to the mediation process. Typically, the parties attend mediation with the goal of settling or resolving the dispute at the mediation so that the final part of the session is spent drafting and signing the settlement agreement.

      Many parties and mediators are uncomfortable with the prospect of a party walking out of a mediation and taking the final offer home “to sleep on it”. They fear that if a party walks out of a mediation to “mull” it over, the matter will not settle.

      This research though  indicates that “sleeping on it” is not such a bad idea: to the contrary, it may be rather productive. A person’s unconscious is the better decision maker and thus a person will make a good decision, unconsciously. That decision most likely will be one that is much more rational,  much less biased and  much less dependent on preconceived notions than one made consciously at a mediation.

      So, counter-intuitively, perhaps it is not a bad thing to let someone walk out of a mediation with an offer in hand “to sleep on it”. Chances are, the matter will settle once the unconscious decision-maker takes over!

      . . .Just something to think about.

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       On Saturday, November 7, 2009, Dr. Daniel Druckman, Professor of Public and International Affairs at George Mason University in Fairfax, Virginia delivered the 5th Annual L. Randolph Lowry Lecture at Southern California Mediation Association’s 21st Annual Conference.
 

      His lecture was taken from his article Intuition or Counter-Intuition? The Science behind the Art of Negotiation published in the October 2009 issue of the Negotiation Journal (at pp. 431-448). In the limited amount of available time, Dr. Druckman  highlighted the metaphors for negotiation and some counter-intuitive findings regarding negotiation.
 

      First, negotiation can take many forms and is used in varied contexts, be it from our own daily lives, domestically, regionally, internationally, or even globally.
 

      To best describe the different forms of negotiation, Dr. Druckman uses metaphors. For example, some negotiators see negotiation  as a game, while others view it as a discourse.  Still, others,  see negotiation as a tool for managing organizations. (p. 433.)
 

      Some view negotiation as a puzzle to be solved with the familiar example being the ‘prisoner’s dilemma”. Others view negotiation as a bargaining contest such as occurs in haggling in the market place (p. 433).
 In addition, negotiation can be viewed as diplomacy politics in which “negotiation is viewed as a microcosm of the larger game of international politics” (p. 434).
 

      In short, there is not just one facet to negotiation: it has many faces, and how it is used depends heavily on the context in which it is used: the market place, within organizations, between states, between countries, or globally.
 

      Of equal interest are Dr. Druckman’s counter-intuitive findings. Each challenges “. . . the  popular wisdom and illuminate[s] the complexity of negotiating behavior”.(p. 437).

      The first involves the notion, to negotiate or not to negotiate: “A continuous negotiation process can increase the chances of getting a settlement.  It can also serve to perpetuate impasse” (p.437). Thus, it is important to know when to negotiate and when to stop. According to research, negotiations should continue as long as” momentum is building towards an agreement” but should stop” if new incompatibilities are discovered” which will serve only to heighten the conflict. (p. 437.)

       At the same time, “impasse can turn a frozen negotiation around.” It is often a “wake-up call” to negotiators to perhaps take a “time out” to reframe issues or develop new procedures that can lead to progress. (p. 437)

       A second counter-intuitive finding is that some times, “developing negotiating alternatives can have negative effects that outweigh the “good” agreement” (p. 438). That is, generating too many alternatives may produce a less than ideal agreement. Thus, determining the best alternatives to a negotiated agreement  or BATNA may actually be detrimental.

       A third counter-intuitive finding is that “exchanging too much information during negotiation can have the unforeseen consequences of revealing new incompatibilities that can escalate” rather than resolve, the dispute (p. 438).

       Similarly,  “too much flexibility in concession making may have negative implications for group loyalty” (p. 438).  According to Dr. Druckman, research has revealed that “quick concessions, even if mutual, often lead to suboptimal agreements.” Dr. Druckman calls this the “Winner’s Curse” (p. 438).

       The final counter-intuitive finding discussed involves emotional expressions:

      “. . . displays  of anger can be helpful when they reveal strongly felt values or interests and are directed at the task rather than at the other person(s). Strong expressions can serve to define or anchor a bargaining range if they are regarded as authentic signals rather than as distracting “noise” (p. 438).

       Similarly, firm stances can be effective, as well:” Standing firm on principles early in a negotiation but showing flexibility on positions later can elicit more concessions. . . ” (p. 438). (Or, similarly,  as my mediation trainers have often said: “be firm in the position but soft on the people.”)
 

       Dr. Druckman’s  brief discussion of the different metaphors for negotiation and the findings on counter-intuitive negotiation tactics gave me a lot to think about and to incorporate into my mediation practice.

       I hope that they provide food for thought for you as well!

       . . . Just something to think about!

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       As I have mentioned several times over the last few weeks, the Southern California Mediation Association (“SCMA”) will be hosting its Annual Conference on Saturday, November 7, 2009 at Pepperdine University School of Law, Malibu, California. (See, 2009 SCMA Conference) It will be preceded by a dinner on Friday night, November 6, 2009 at which Lee Jay Berman will host a discussion entitled “M3: How Do Mediators Spread The Word And Better Educate Users.” 

       The Conference is entitled: “M3 The Next Generation” and will explore all of the various ways in which mediation is being used, can be used and will be used. One of the panels will explore this from the female perspective. The panel, comprised of Jan Frankel Schau, Esq., Joan Kessler, Esq., Amy Fish Solomon, Esq., and Stacy Phillips, Esq. will examine the now historic literature on gender and communication and question its applicability in negotiation and mediation in 2009. The panel discussion, entitled “Negotiating in the Female Voice: What Can We Learn From Our Women Colleagues (Not For Women ONLY)” will explore the gender biases, assumptions, empathy and competition in mediation and negotiation.

       I highlight this panel because recently one of its panelists, Jan Frankel Schau, made a very interesting point in her Schau’s Settlement Strategies. In it, she discusses the importance of having the important decision makers at the mediation and fully present in all respects. (See, top-twelve-tips-for-success-in-negotiations) Why? She explains:

      “Statistics suggest that 55% of communication is non-verbal. It stands to reason, then, that if the decision maker is not present. . . , they miss out on more than ½ of the communication going on. . . .” (Id.)

       Thus, when the client is not physically present at the mediation session, she does not become “invested” in the process; rather she is distracted by emails and what is going on where she is physically. Further, and more importantly, she is unable to respond to the bulk of the  communication during mediation, since it is non-verbal. Thus, she will probably miss much of the true value of mediation, and as importantly, her matter will probably result in a disappointing outcome.

       Ms. Schau further points out that while attorneys may dislike joint sessions, the clients, (i.e.  the actual parties to the dispute) appreciate them. Why?  . . .“The clients bring the conflict in and they are a critical component to its resolution.” (Id.)

       Ms. Schau makes some important points. To learn more of what she has to say, come to the Conference and attend her panel discussion.

       . . .Just something to think about.

If you have not done so already, do not forget to sign up for the Southern California Mediation Association’s 2009 SCMA Conference I am in charge of it and hope to see y’all there! 

     If you enjoy this blog, and want to receive it weekly via RSS Feed, click here: http://www.pgpmediation.com/feed/ or via FeedBurner email subscription, then enter your email address under the word “Subscribe” to the above right and click on the “Subscribe” button

       Recently, I was sent a study that was published in The Jury Expert (www.astcweb.org) entitled “Civil Case Mediations: Observations and Conclusions” by James A. Wall, Jr., and Suzanne Chan-Serafin.
 

      The authors researched 62 civil case mediations in two cities to determine, empirically, whether the behavior of the mediator and/or that of the plaintiffs and/or defendants influenced the process or outcome of the mediation. The cases observed were mediated by attorneys (21 of them) and retired judges (8 of them) who had practiced law on average for 30 years and had mediated on average 606 cases over about nine years.
 

      First, the authors found that the settlement rate varied with the type of case. “Specifically, 89% of liability cases other than motor vehicle and medical malpractice (e.g. slip and falls. . .) ,69% of motor vehicle cases and 75% of medical malpractice cases resulted in settlement agreements.” (Id.) In contrast, 10% of contract cases and 50% of employment cases ended in settlement. Further, they found that the smaller cases settled more often than the larger ones.
 

      Second, the authors found that whenever a party had high goals (aka unrealistic expectations), the mediator did, indeed, use assertive techniques/statements to provide the dose of reality.  

      Third, the authors also found that their chicken-and-egg cycle for the plaintiffs’ and defendants’ behaviors was an accurate prediction:
“Specifically, plaintiffs made higher concessions than the defendants; mediators expected they could get higher concessions from the plaintiffs; therefore, they applied more assertive techniques to the plaintiffs. (Id.) 

       The authors found that the mediators did not use “. . .more assertive techniques when there were low concessions and non-agreement.” Id. Rather, two process were at work when there was non-agreement. In one set of cases, the mediators did use assertive techniques in the face of excessive demands by plaintiffs, but to no avail. In the second type of cases – contract and employment – “. . .the mediators became bogged down in the cases or became impatient and instructed the disputants to simply exchange numbers. . . .” (Id.) Not surprisingly, few agreements were reached.  

      Finally, but most importantly, the authors found that the behavior of the mediator really had no effect on whether the case settled. In 27 of the 62 civil cases reviewed, the mediators’ behavior had no effect upon the agreements. However, in the other 35 cases, “the mediators’ techniques affected the disputants’ behaviors but even in these, there was evidence that the mediators’ behaviors were occasionally reactions to – rather than a cause of – a plaintiff’s or defendant’s behavior”. Id. In short, either the mediator did not affect the outcome or her behavior was affected by the parties’ behavior and not vice versa. Id.

      In sum, it seems that this research supports the assertion of Judge Wayne Brazil that mediators “should understand that they are hosting a negotiation process.” Id.
 

      Obviously, as a mediator, I find this last result disconcerting. While I have hosted many a negotiation process in which I know I did not “affect” the parties’ behaviors because the matter settled quite easily and quickly, I also knew that I have hosted many a mediation in which my mediation skills did make a difference. In my gut, I know that the case would not have settled without my assistance. To say my behaviors in such instances were reactive rather than proactive to those of the parties, misapprehends the art and science of interpersonal relationship skills. As a mediator, I neither “control” the substance nor the process of the mediation. Rather, I must follow the lead of the parties, to see where they are and assist them in moving towards resolution. I “go with the flow,” take my cues from them and do not “call the shots.” So, my behavior must be “reactive” but at the same time, my “reactive” behavior is designed to channel the parties towards realistic goals and expectations, towards helping a party understand (or, at least, acknowledging) the other’s viewpoint, towards making concessions, towards understanding the needs and interests of all concerned and hopefully, towards resolution.

      So while the study is interesting, I am not sure that it understands really how a mediator plys her craft and uses the tools in her toolbox.

       What do you think?. . . Write a comment!

       . . . Just something to think about.

  If you have not done so already, do not forget to sign up for the Southern California Mediation Association’s 2009 SCMA Conference I am in charge of it and hope to see y’all there! 

     If you enjoy this blog, and want to receive it weekly via RSS Feed, click here: http://www.pgpmediation.com/feed/ or via FeedBurner email subscription, then enter your email address under the word “Subscribe” to the above right and click on the “Subscribe” button