Reading Minds: The Role of Psychology in Civil Dispute Resolution

By: Ryan Pedersen

Introduction

Lawyers must often ponder what their opponents are thinking. Psychology, the discipline of studying the human mind and behaviour, has developed rigorously tested methods for discovering what people are thinking, consciously or unconsciously, in a wide variety of settings. Psychology’s involvement with the law is traditionally limited to using clinical psychologists to rule on offenders’ fitness for criminal trials. However, the research and practices stemming from psychological academia have far broader uses for legal professionals. This essay aims to take an interdisciplinary approach to legal dispute resolution, exploring the benefits of psychology as a tool for legal professionals to resolve disputes. More specifically, this essay argues that using a psychological perspective in civil dispute resolution can further the goals of a given dispute resolution mechanism within traditional and alternative dispute resolution processes and create unique forms of alternative dispute resolution.

First, this essay will explore how the use of psychology can transfer from criminal to civil litigation and the benefits of doing so. This argument will be used as a springboard for where psychology is most valuable: alternative dispute resolution (ADR). This essay will draw from ADR theory to argue how psychological research and therapeutic jurisprudence can inform legal professionals in the established negotiation and mediation ADR methods. Finally, this essay will draw on real-world experiences from psychological practitioners involved in civil dispute resolution to bring the role of psychology in civil dispute resolution from theory to practice. This will include testimonials from clients who have used a psychologist’s services in civil mediation. It should also be prefaced that each form of dispute resolution’s “goals” are debatable. Still, the goals this essay identifies for litigation, negotiation and mediation align with this essay’s traditional Western worldview.

Psychology in Resolving Litigation

Traditional Uses

Psychology is a valuable tool in the dispute resolution setting of litigation. As noted above,¹ psychology’s interaction with law has been generally limited to the criminal setting, a branch of psychology known as “forensic psychology”. However, in recent decades the discipline of psychology has reshaped some of the institutional practices of North American criminal law. Criminal law has been framed as a dispute between individuals and the state.² By studying psychology’s effects on this form of dispute resolution, parallels can be drawn to civil disputes. Starting in the United States during the early 1990s, “problem-solving courts” began to emerge that targeted specific “disputes” (crimes).³ Problem-solving courts are statutorily created inferior courts whose goals are to reduce reoffending rates, also known as recidivism.⁴ Problem-solving courts tailor their procedures and judgements to the problem they aim to alleviate. One of the most common problem-solving courts is the “Drug Court”, a tribunal that only hears cases involving crimes related to or stemming from drug addiction. Drug addiction is classified in the DSM-V (the mental disorder diagnostic criteria used by clinical psychologists) as a mental illness.⁵ Due to this link between mental illness and crime, Drug Courts have largely used psychological research to inform their policies and procedures.

Drug Courts have been operational in Canada since 1998 and have shared the goal of American Drug Courts to reduce recidivism.⁶ In Canada, Drug Courts have had roughly 8% success in reducing national recidivism rates for drug-addicted offenders by targeting the psychological principles of risk, need, and responsivity.⁷ The risk principle targets behaviours and demographic features of an offender linked to higher recidivism rates, such as exposure to criminal associates or being an on-reserve Indigenous person. The need principle targets any areas of an offender’s life correlated to recidivism when not present, such as steady income or family support. The responsivity principle aims to tailor treatment plans to match an offender’s personality and behavioural characteristics to maximize efficacy potential.⁸

All three principles, and all psychological studies in general, gain their insights from statistical analysis of psychological characteristics from the general population to derive what an “average” person might do in the patient’s position. A methodological parallel is present between the psychological scientific method and legal analysis, where courts often apply standards of what an average or reasonable person might think or do. In the Drug Court setting, psychological knowledge has been used as a tool by the legal system to inform their procedures and policies, achieving success in their intended goals. Other problem-solving courts similarly target psychological needs with psychological research, such as Domestic Violence Courts in the United States, delivering treatment that targets anger to repeat domestic abuse offenders and Juvenile/Youth Courts catering their sentencing and procedures to the psychological capabilities of young people.⁹ Can this success be translated to civil litigation?

In her study on psychologist-assisted mediation for schoolyard disputes, Dr. Nicky MacWilliam makes a convincing case for the use of psychological principles in judicial decision-making.¹⁰ MacWilliam argues that understanding the underlying wants and needs of the parties can be a valuable tool for judges when ruling on litigation. The use of a party’s underlying wants can be effectively achieved through psychology, as it is the only scientifically reliable discipline for understanding human wants. Adopting a wants-based approach can lead to outcomes in civil litigation that are fairer for the parties, one of the principal goals of litigation as a dispute resolution method.

Using Psychology as a Judicial Decision-Making Tool in Civil Litigation

The Supreme Court of Canada has informally adopted the wants-based approach in decisions that consider the parties’ intentions. One such decision is Pecore v. Pecore¹¹, a civil litigation concerning an estate dispute. In Pecore, a father added his daughter as a joint tenant to his trust account based on bad advice from a banker but never gave his daughter access to the account (as a joint tenant would typically have). The father wrote a will that left half his estate to his daughter and the other half to her then-husband. The contents of the trust account were legally outside of the estate because of the joint tenancy, as the father wished his daughter would inherit all of the contents by right of survivorship. The father died after the daughter divorced her husband. The husband brought the litigation against his now ex-wife for half of the trust account, claiming her inability to access the account during her father’s lifetime broke the joint tenancy and that half of the account should be his by virtue of it being included as assets of his estate.

The Supreme Court held that the joint tenancy had remained intact, principally by examining evidence regarding the father’s intentions for the trust account. The Supreme Court used the father’s conversations with bankers, neighbours and the litigants as evidence of his intentions for the money and found legal mechanisms to support a conclusion consistent with those wishes. In doing so, the Court also changed the law of joint tenancies and survivorship. This methodology reflects the argument expressed by MacWilliam that adopting a wants-based approach can come to an outcome that reflects fairness and justice for the parties involved.¹² While the Supreme Court did not use any disciplined psychology in its ruling, using evidence to adduce a party’s intentions is inherently psychological as it speaks to what someone was likely thinking. While fairness is a value-laden social imaginary, the outcome of Pecore can be said to have been the fairest result given that, based on the evidence, the father would not have wanted his trust fund money to go anywhere other than to his daughter and her immediate family.

The wants-based approach to judicial decisions is open to criticism on the grounds that it creates instability in judicial decision-making. Factoring individual litigants’ intentions and wants into a decision could undermine the stability the rule of law offers to parties (such as the ex-husband in Pecore) who rely on stare decisis rather than intentions in bringing their dispute to court. However, it can be countered that, first, the judicial system is already wildly unpredictable, and the judicial mechanism of appeals exists solely to rectify the instability inherent to a common law system. Appeals would not exist if it were easy to apply the law to facts, evidenced by countless cases decided one way at trial, overturned on appeal, and reversed yet again at the Supreme Court. Second, the wants-based approach can be limited to civil disputes where the parties’ intentions and wants are materially relevant to the litigated dispute. The wants-based approach may be helpful in a contract law dispute and less so in a negligence claim. Nevertheless, using evidence to psychoanalytically adduce the inventions and wants of parties involved in a dispute has been a useful judicial tool for Canadian courts. To increase the efficacy and reliability of the wants-based approach and minimize the potential instability it could create, courts ought to use psychological evidence from practicing psychologists rather than drawing inferences themselves. The wants-based approach can likely lend equal assistance to arbiters, as parties’ intentions have equal relevance to arbitration decision-making.

Psychology in Alternative Dispute Resolution

While psychology has a role to play in litigation through its influence on problem-solving courts and as a decision-making tool, the discipline has a broader and more practical use in ADR. Within the established ADR methods of negotiation and mediation, psychological research and theory complement existing jurisprudence on how legal professionals can alternatively resolve disputes rather than going to court.

Negotiation

Negotiation theory has identified two principal styles of negotiation: integrative (where the parties are cooperative to find a win-win resolution) and distributive (where the parties are combative to find a win-lose solution). Hanycz, Farrow and Zemans argue that an integrative approach is best for the parties and should be a first resort if the value climate supports it, and if not, a distributive style is necessary.¹³ The value climate, a term used to describe the availability of resources for competing interests, can be determined by examining the parties’ interests in the result of a negotiation.¹⁴

Lax and Sebenius identify four interests that can affect the value climate and thus a legal professional’s chosen style of negotiation: process interests (how the parties desire the process to happen), substance interests (the outcome needs the parties have), relationship interests (if the parties wish to continue relations post-negotiation) and interests in principle (what values the parties personally hold pre-negotiation).¹⁵ Psychological methods are inherently present when a negotiator analyzes the value climate through the lens of these interests. Understanding a client or opposing party’s process interests, relationship interests, and interest in principle requires evidence-based opinions on what they may consciously or unconsciously think and feel about the negotiation. This information can be “excavated” from a client or opposing party through questioning.¹⁶ Questioning is a methodology extensively researched in psychology for extracting information from humans.¹⁷ Excavating interests from an opponent through questioning without them knowing you’re trying to do it is likely a challenging task that requires rehearsal and poses a gap in the psychological literature.

Distributive Negotiations

If the value climate is unsupportive of a win-win situation, the negotiator should choose a distributive negotiation style. There is a considerable volume of psychological research on how to win a distributive civil negotiation. A 2023 meta-analysis conducted by Boothby et al.¹⁸ summarizes the state of psychological negotiation research on various topics, including the psychological effects of gender, power, culture, and randomized individual factors in a negotiation. However, this essay will only analyze their summaries on the use of psychology for the topics of initial offers, the best alternative to a negotiated agreement (BATNAs), and the influence of emotions.

During a distributive negotiation, psychological research has found that making the initial offer anchors the negotiation and will more often than not lead to a result that is “surprisingly close” to the initial offer.¹⁹ As well, using a precise number in an initial offer rather than a round number has been found to increase a negotiator’s sense of credibility toward their opponent and will likely elicit counteroffers closer to the initial offer.²⁰ However, making an initial offer is likely to lead to unfavourable counteroffers if counter-arguments come readily to mind as to why the offer is unreasonable²¹, and it is unwise to make an initial offer if the negotiator is unfamiliar with the value climate as they are likely to make an unfavourable offer within the realistic settlement range.²²

On BATNAs, psychological research has found that having any alternative at all to a negotiated agreement has a “cascade” of benefits to a negotiator, such as more favourable initial offers from opponents and a more favourable range of acceptable outcomes.²³ As well, having an uncertain BATNA (such as a potential job offer in an employment negotiation), an imagined BATNA (believing one has an alternative that doesn’t yet exist), or a BATNA that has ceased to be available at the time of negotiation have all been found to increase beneficial psychological conditions in a distributive negotiator, which in turn leads to more favourable negotiated results.²⁴ Relatedly, alluding vaguely to a BATNA has been correlated with more favourable counteroffers from opponents.²⁵

Psychological research on emotions in a distributive negotiation has found that a negotiator exhibiting anger can have two effects: either instil fear in an opponent to coerce a better deal or instil apathy in an opponent and kill a deal.²⁶ Research has not yet been able to identify how to predict which reaction a given opponent will likely have, but there is evidence that anger directed at an offer rather than the opponent will likely elicit the former.²⁷ Similarly, expressing disappointment at an offer is likely to elicit guilt and thus a better counteroffer, only if the other negotiator belongs to the same demographic as the negotiator.²⁸

A negotiator in a distributive negotiation will find that the results of psychological research can be beneficial to furthering the goal of a distributive negotiation: winning. By understanding how the average person will react to initial offers, the presence of a BATNA, and emotional signalling, the distributive negotiator can look at the situation from metaphorically 30,000 feet rather than getting stuck on the terms of the deal while negotiating.

Integrative Negotiation

As noted above²⁹, Hayncz et al. argue that when the value climate is supportive of a win-win situation, the negotiator should choose an integrative approach. A win-win situation should be the gold standard for negotiating parties that value continued relations with the other party or care about the other party’s interests. However, a problem with this recommendation is that human psychological factors often get in the way of adopting an integrative approach. In civil disputes, resentment can often cloud a negotiating party’s interests in value climates supportive of an integrative approach.

Similarly, at first glance, a negotiator may prematurely appraise the value climate as unsupportive of a win-win and avoid an integrative opportunity. One situation where the latter problem is prevalent is what Trötschel et al. call a “common resource dilemma”: negotiations in the environmental sector where short-term economic interests are at seemingly irreconcilable odds with long-term ecological interests.³⁰ The authors argue that in these situations, the parties often come to the bargaining table with a myopic mindset where both sides want the result to be their way immediately, and the economic interests often prevail.³¹

Negotiators can use a psychological mindset shift in this situation to bring parties from a seemingly distributive value climate to an integrative one. Within the context of common resource dilemmas, Trötschel et al. recommend negotiators consciously implement three holistic factors into their bargaining position. First, implement a holistic social identity: the negotiators should frame the resource dilemma in terms of “we” instead of “us and them” because sustainability issues affect both parties as humans on planet Earth.³² Second, the negotiators should utilize a holistic prosocial motivation, where the parties should be open to compromise for the greater good, including allowing short-term resource depletion if they can meet a plan for long-term sustainability.³³ Lastly, the negotiators should have a holistic time perspective, convincing all parties that the long-term interests need to prevail over the short term by highlighting the common adverse fate both parties would suffer from resource depletion.³⁴

The holistic mindset can be used by negotiators not only to change a distributive value climate to an integrative one in the natural resource setting but also in all civil disputes. Suppose a negotiator can effectively implement these three factors into their own mindset and convince their opponent why compromise is better for everyone. In that case, the negotiator can transform a win-lose situation into a win-win. For example, in Pecore, if the parties decided to negotiate to avoid litigation, perhaps the daughter could have compromised with the ex-husband to inherit the trust account but give him a smaller share than the half he was demanding to avoid the legal fees they incurred en route to the Supreme Court. This compromise factors the interest of both parties (using “we” thinking), works for the greater good by saving both parties time and money, and in the long term, will help both parties by perhaps saving any semblance of a relationship between them.

The only hindrance to the psychologically holistic mindset method is when the opposing party refuses to compromise. As the parties in Pecore demonstrated, in the real world, people’s emotions get in the way of cooperation, and some parties simply do not want to think of the greater good or the other side. As Hancyz et al. point out, in this situation, there is nothing left to do but revert to a distributive negotiation.³⁵ Regardless, psychology as a discipline lends statistically average behavioural information and theoretical tools for a negotiator to use in both negotiation styles through the Boothby et al. meta-analysis and the Trötschel et al. mindset shift. A negotiator also has insight from psychology when choosing either style and further insights on how to convince the other side to choose integrative to support a win-win, if possible.

Mediation

Like a judge in litigation, the mediator in mediation can use psychological insights as a tool to facilitate mediation’s goal of settling a case. Again, this essay notes considerable academic debate about what the “goal” of a mediation session is or ought to be. For this discussion, reaching the goal of a settlement at mediation will be used. Mediation theory can be informed by “therapeutic jurisprudence”: an intersectional discipline that combines clinical psychology and legal scholarship to study the potential of the law as a “therapeutic agent”.³⁶ Therapeutic jurisprudence recognizes that adverse psychological reactions from a legal process itself often accompany people who use the process to resolve their dispute. Therapeutic jurisprudence aims to study if these reactions can be remedied without reducing the procedural fairness instilled by the rule of law. Therapeutic jurisprudence is inherently tied to the discipline of psychology through the study of emotional reactions and therapeutic processes within the legal setting rather than clinical psychology’s usual domain of medicine.

Mediation theory has identified two main styles a mediator can use in their mediation session: facilitative (where the mediator guides the process and outcome through personal control and questioning parties) or evaluative (where the mediator allows the process and discussions to unfold in a manner chosen by the parties with the mediator interjecting with their professional opinions on the merits of the dispute).³⁷ Therapeutic jurisprudence reveals the psychological benefits and drawbacks of each approach to the client’s emotional well-being.

Psychological research says that clients are more likely to comply with the process and results of mediation if they feel as though the process is “fair”.³⁸ Psychological feelings of fairness are determined by evaluating if clients perceived they had the chance to participate, were treated with dignity, and trusted that the process was neutral.³⁹ A mediator can utilize this aspect of therapeutic jurisprudence to try and elicit these three factors during the mediation session to increase the statistical likelihood of success.

Facilitative Mediation

A facilitative mediation can potentially increase the factor of trust in the process if the mediator can elicit trust from the parties in their mediation ability. An essential element that psychological research has linked to being perceived as trustworthy is to be genuine.⁴⁰ If a client can subconsciously tell when a mediator is acting or hiding their true emotions, the mediation is less likely to succeed. No effect has been found between trustworthiness and gender⁴¹, implying that a male or female mediator can equally gain a client’s trust by being genuine. A facilitative mediation creates an environment where the parties involved in a dispute have the autonomy to choose their outcomes but not the process. Autonomy in the outcome has been psychologically linked to the emotions of confidence, pride, and empowerment, which in turn can make a mediation session more therapeutic.⁴² Mediators should utilize a facilitative approach if they feel they can be genuine with the client to increase the therapeutic potential of mediation.

Evaluative Mediation

Therapeutic jurisprudence recommends avoiding evaluative mediation, as the open process runs high risks of the disputants becoming combative, unequal participation arising, and dignity being undermined.⁴³ This being said, an evaluative mediator can gain the psychological benefits of being seen as a higher authority figure than a facilitative mediator. These benefits include empowering clients and avoiding regret through access to credible information on how their dispute would play out in court.⁴⁴ As well, the authority of an evaluative mediator can bring cathartic feelings of closure and finality more so than a facilitative mediator if a settlement is reached.⁴⁵ However, because of the risks associated with the process of evaluative mediation, reaching a settlement might be less likely, although this has yet to be determined through psychological study.

A practical issue that arises from this essay’s proposed use of therapeutic jurisprudence as a tool for choosing a mediation style is that professional mediators often have a set style which they market and practice. A mediator may be reluctant to tailor their mediation approach based on psychological reactions associated with each approach and the psychological evidence regarding factors that lead to compliance with the mediation process. However, this essay simply argues that psychology is a useful tool for promoting the outcomes of various dispute resolution methods. Whether a mediator chooses to ignore scientific evidence over marketability concerns speaks toward their flexibility. Granted that psychological evidence makes predictions about a “statistically average person” that will not apply to every client, the evidence can nevertheless be used as a methodological tool for a flexible mediator to increase the chances of settlement.

The Role of Psychological Practitioners in Dispute Resolution

Psychological practitioners, like legal practitioners, range widely in their areas of expertise. The layman usually thinks of a clinical psychologist when thinking of a psychological practitioner: someone who works with mental disorders and their treatments. However, many different facets of psychology exist in practice that are relevant to the legal field, such as organizational psychology (the study of subconscious factors that increase workplace happiness and efficiency), social psychology (the study of interpersonal relations), forensic psychology (as discussed before relating to criminal behaviour), and cognitive psychology (the study of thinking and reasoning). The cited psychological research in this essay that has lent support for understanding the human element of disputes derives from an assortment of these fields. This essay has briefly discussed the role of forensic psychologists in dispute resolution in determining if an offender is mentally fit to stand trial in criminal litigation. But where can a psychological practitioner assist in a civil dispute?

Susan Heitler is a registered clinical psychologist who also ran a mediation practice in the United States until her retirement in 2020. Due to the relaxed regulatory requirements for becoming a mediator in most North American jurisdictions, psychologist-led mediation practices have started in most major cities. Many psychologist-mediators advertise their services in family law because therapeutic jurisprudence has identified a need for procedural reform in this setting.⁴⁶ In family law, traditional dispute resolution models often negatively impact a marriage’s vitality and children's well-being.⁴⁷ Heitler details her intersectional techniques for mediation in her essay “Therapeutic Mediation: An Alternative to Costly Litigation”⁴⁸, a case study where therapeutic mediation is used to resolve a dispute between an attorney and client.

Heitler first notes that legal professionals and psychologists are already familiar with resolving disputes, but legal disputes are often extra-personal, whereas psychological ones are intra-personal.⁴⁹ The facts of the case study revolve around a client who hired a lawyer to represent her in divorce settlement proceedings. At client meetings, both parties began to feel romantic feelings for one another, and while nothing physical ever happened between them, their conversations would get off-topic and personal. When the divorce hearing date approached, the lawyer recused himself as he felt unprepared and too emotionally invested in the case. His colleague took over the case at the hearing. The client was deeply unsatisfied with the recusal and the hearing outcome, so she withheld payment and commenced malpractice proceedings. The lawyer counter-sued for unpaid fees, and their case ended up in mediation before Heitler.⁵⁰

Heitler’s mediation process is facilitative and focuses on the emotional aspects of a case to try and come to a resolution that addresses the merits of the dispute and resolves any emotional conflicts that arise from it. She notes that therapeutic mediation was an appropriate forum for this dispute since it involved a higher level of emotional involvement than a typical attorney-client dispute.⁵¹ The process starts with both sides telling their story with a special caveat: parties can only talk about themself or ask about the other person. Heitler implemented this policy to avoid feelings of anger that arise when someone misspoke about the experience of the other, which has been linked to a breakdown of negotiations.⁵² As a testimonial, the woman said that hearing agreed-upon facts in real time was cathartic and validated her feelings and versions of events. After this, Heitler holds caucuses to identify which issues are most pressing to the parties, including emotional ones. The lawyer identified that receiving his fees and ensuring the woman left without emotional damage were important to him; the woman wanted validation for her feelings of abandonment and to address the merits of the malpractice claim. Next, Heitler discusses these issues openly with both parties and asks each side to apologize for what they feel they should apologize for. Notably, the lawyer apologized for abandoning her and confirmed his feelings were real, which the woman reported was incredibly reassuring and helped her during the emotionally tumultuous time she was experiencing post-divorce. Heitler also recommended to the client (blending in some evaluative style to therapeutic mediation) that the lawyer’s actions of recusal were proper and that a malpractice claim against him was not the right avenue to settle her grievance with the outcome of her divorce hearing. The parties came to an agreement regarding fees, and both left the session with emotional insights about themself and the other party.⁵³ The case study illustrates both the role of a psychologist in civil dispute resolution and the benefits of a therapeutic lens to mediation. Both parties left with their legal issues resolved and emotional well-being improved.

Heitler argues that therapeutic mediation cannot work where parties are unwilling to cooperate, acknowledge their errors, and appreciate how their mistakes made the other party feel.⁵⁴ This constitutes a significant limitation of the role of a psychological practitioner in mediation. However, the role of psychological practitioners in mediation can go much further than therapeutic mediation. While therapeutic jurisprudence lends empirical support to the concept of softening the emotional damage that legal dispute resolution processes often convey, it is one small branch in the psychological tree. Specific kinds of psychologists, such as organizational or social, can use their expertise to mediate corporate disputes between co-workers or departments. Also, clinical psychologists can stop disputes at the source through therapy sessions, which often involve having individuals reflect on their actions and how they affect others, potentially ending problematic behaviour before legal intervention. Though just a few examples, psychological practitioners have concrete potential to be useful to the legal field and further the goals of dispute resolution methods.

Conclusion

Disputes arise out of human interactions gone awry, and understanding the underlying psychological processes of others can inform legal dispute resolution in various settings. This essay has attempted to display psychology as an interdisciplinary tool for resolving legal disputes in litigation or ADR. Psychological research has been used in the criminal setting of “problem-solving courts” to target specific behaviours. This essay argued that the Supreme Court has used similar legal reasoning in the civil litigation setting, exhibiting psychology as a judicial decision-making tool. Psychological research has also assisted the ADR method of negotiation by helping negotiators better evaluate the value climate and resolve issues at the negotiating table by understanding their opponent’s mental processes as well as their own. Therapeutic jurisprudence, a form of scholarship heavily influenced by psychology, can assist mediators by identifying psychological principles that will make mediation more effective, choosing a facilitative or evaluative style, and understanding the statistically likely emotional effects of either style. Finally, the possible roles of psychological practitioners in dispute resolution were discussed using the case study of a psychologist who practices therapeutic mediation, with positive testimonials from clients who used her services.

Further psychological research should be conducted to determine if a facilitative or evaluative approach is more psychologically likely to lead to settlement in mediation and how a negotiator may excavate interests from their opponent undetected. Understanding the human mind and behaviour is a powerful tool that can most likely translate further to the legal setting than the scope of this essay has demonstrated. At the end of the day, human beings lie behind each legal dispute. It is up to legal professionals to choose to use the resource of the human mind to resolve the dispute.

TABLE OF AUTHORITIES

JURISPRUDENCE

Pecore v. Pecore, 2007 SCC 17 (CanLII), [2007] 1 SCR 795, online.

SECONDARY MATERIALS

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Trötschel, Roman et al., “From Claiming to Creating Value: The Psychology of Negotiations on Common Resource Dilemmas” (2022) 14:9 Sustainability 5257.

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Endnotes