Kareem Abdul-Jabbar «is hot for yoga» – lawyers should be hot for mediation training

lawyers should be hot for mediation training

Basketball star Kareem Abdul-Jabbar was known for his special way of driving toward the basket, and he perfected his famous “sky hook” skill. In addition, he regularly practiced yoga[1] to develop his flexibility to perfect his “sky hook”.

This analogy can be applied to lawyers who have mediation training. Lawyers who develop mediation skills strengthen their traditional legal skills.

Mediation training gives lawyers a broader perspective, they provide more objective advice to clients, more accurate forecasts of outcomes, and promote more collaborative negotiations to create value for their clients, this is the conclusion of a research project presented in the Harvard Law Review[2].

What mattered was whether a party’s lawyer self-identified as having had mediation training and experience.  When one or both lawyers involved in a case had training and experience as a mediator, both rates and magnitude of decision error were reduced.

Frenkel and Stark[3] based their conclusion on the results of a 2008 large-scale empirical study[4] of settlement decision-making in cases involving more than 5000 California litigators in more than 2000 actual contested cases. They found that the parties’ attorneys often made erroneous settlement decisions, rejecting settlement offers that turned out to be better than they ultimately achieved in court.

Mediation training will help lawyers with the skills needed to reach less biased and more accurate outcomes on behalf of their clients. Awareness and training in taking a more impartial perspective are compatible with the traditional skill of promoting critical thinking.

Several studies affirm that when we are put in a biased role, or tasked with achieving a specific goal, we are exposed to pervasive cognitive and motivational biases. They are very demanding to change because we are very often unconscious that we are disturbed or affected by them. We fall victim to a “bias blind spot “. When we are placed in competitive roles or settings involving conflict, as in the case of a lawyer representing a client, we are victims of such “bias blind spot“, because our judgments are colored by self-interest – even when we think we are fair and objective.  We are then more prone to cognitive, motivational, and emotional biases.

Kareem Abdul-Jabbar  "Skyhook"
Basketball star Kareem Abdul-Jabbar was known for his “Skyhook”. Photo by Focus on Sport via Getty Images

The study by Frenkel and Stark concludes that when such unconscious biases affect lawyers, they suffer from egocentric biases that can hinder the ability to give more objective advice to clients, they can lead to overly optimistic forecasts about the likelihood of the outcome, and they can promote more “we vs. them“-thinking that can aggravate and prolong conflicts and carry significant costs for both clients and society.

By training lawyers in a mediator role – a role in which the mediator impartially tries to help parties resolve a conflict – lawyers can develop habits of increased objectivity to what they are asked to do. This is supported by social science literature and research on two specific strategies of biased judgment – the ability to assess the opposite scenario and the ability to take another’s perspective – both core skills of a trained mediator’s mindset.

Develop a mediator’s mindset in mediation training

Mediators are trained to take a neutral, objective perspective on conflicts to help the parties overcome obstacles to resolution, including common judgment biases. During private meetings, mediators often encourage parties to look beyond their limited perspective and become open to collaborative solutions.

According to Frenkel and Stark, lawyers may be able to use this type of objective mindset by practicing two de-biases techniques:

(1) considering the opposite and (2) perspective-taking.

Considering the opposite involves thinking in detail about why our assumptions and decisions might be wrong. In several studies, helping participants to consider the opposite of their stance and using hypotheses led them to make better, less biased decisions.

Perspective-taking means putting ourselves in another person’s place and actively imagining the other person’s point of view. This is the role-reverse exercise many participants do in WNI’s training. This is a practice that has been shown to counteract bias and increase objectivity. Perspective-taking can reduce bias toward members of “the other or the out-group,” as well as our self-centered perceptions of what would constitute a fair outcome.

In their study, Frenkel and Stark argue that law schools should not only train tomorrow’s lawyers to argue on their client’s behalf but also train them to act as mediators.  

Today, law students can develop mediation, negotiation, and conflict management skills at their universities that can strengthen their traditional legal skills. More and more law students are also participating in international negotiation and mediation competitions so that they can develop and practice this skill. In addition, mediation training is offered to lawyers and others who see the value of building other skills that they did not develop during their studies.

Waegger Negotiation Institute (WNI) recommends that both lawyers and their clients are likely to benefit from making it a habit to practice the two de-biases techniques such as considering the opposite and taking the other side’s perspective.

WNI hopes more and more lawyers are “hot for mediation training”.

For example, a lawyer who believes that his client has been wronged may be subject to confirmation bias — the tendency to seek out information that supports one’s existing views and goals and to ignore information that challenges those views. Consequently, the lawyer may become overly optimistic about his client’s chances of winning in court and recommend extreme settlement claims.

[1] John Morgan & Stephen A. Shoop, M.D., Kareem Abdul-Jabbar is hot for yoga, USA TODAY (Sept. 27, 2003, 6:40 AM).

[2] Harvard Law Review Vol. 21 p.1 (2015)

[3] Professor Douglas N. Frenkel at University of Pennsylvania Law School and professor James H. Stark at University of Connecticut School of Law

[4] Randall L. Kiser, Martin A. Asher & Blakely B. McShane, Let’s Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiation, 5 J. EMPIRICAL LEGAL STUD. 551 (2008)