Russell B. Korobkin
UCLA School of Law
Ohio State Journal on Dispute Resolution, Vol. 21, pp. 281-238, 2006
UCLA School of Law, Law-Econ Research Paper No. 05-9
Some disputes should fail to settle in mediation because there is no agreement that is preferable to adjudication for all of the parties. Mediation can also fail as a consequence of strategic behavior or attorney-client conflicts of interest. This article examines impediments to mediation success rooted in cognitive and social psychology, combining academic research on the psychology of bargaining and dispute resolution with mediation practice.
The article examines how the overconfidence bias, the fundamental attribution error, the framing of risky choices, reactive devaluation, and concerns with interactional justice can impede mediation success to the detriment of the litigating parties. It also proposes actions mediators can take to mitigate these impediments and help the disputants to reach mutually acceptable settlement agreements.