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