Jennifer K. Robbennolt
University of Illinois College of Law
September 29, 2008
Harvard Negotiation Law Review, Forthcoming
Illinois Public Law Research Paper No. 08-05
U Illinois Law & Economics Research Paper No. LE08-033
Empirical researchers have begun to explore the influence of apologies on litigant decision making. This research has found that the effects of apologies on decision making are complex, but that apologies generally influence claimants’ perceptions, judgments, and decisions in ways that are likely to make settlement more likely – for example, altering perceptions of the dispute and the disputants, decreasing negative emotion, improving expectations about the future conduct and relationship of the parties, changing negotiation aspirations and fairness judgments, and increasing willingness to accept an offer of settlement.
Legal negotiation, however, is often characterized by the involvement of attorneys in the negotiation process. There are reasons to anticipate that attorneys may respond differently to apologies than do their clients. Attorneys as agents occupy qualitatively different roles in the process than do their clients and may have an orientation toward analytical thinking and legal rules that influences their understanding of the implications of apologies. This paper empirically explores how attorneys respond to apologies offered in litigation as they advise claimants about settlement, and compares the reactions of attorneys to those of claimants. While attorneys understand the information conveyed by apologies in ways that are strikingly similar to claimants, attorneys’ judgments about settlement when apologies are offered diverge from those of claimants.