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University of New South Wales Law Journal Student Series |
MANIPULATION OR ASSISTANCE? AN OUTLINE OF SKILLS AND TECHNIQUES FROM BEHAVIOURAL ECONOMICS FOR MEDIATION AND THE ETHICAL CONSIDERATIONS FOR A NEUTRAL MEDIATOR
RADHA M. PULL TER GUNNE[1]
Many would consider themselves rational. However, research has provided us with insight into how predictably irrational we actually are.[2] We are irrational because we often make illogical decisions due to cognitive biases. These findings have been applied to basic economic models on decision-making in the field of behavioural economics. Similarly, many articles have been written about the implications of behavioural economics on mediation, showing us the irrational behaviour of individuals during negotiations. In this essay, the term “mediation” is used to describe any third-party assisted negotiation.[3] The body of research on behavioural economics and mediation provides an (often extensive) overview of all potential biases and heuristics which can arise during negotiations, and some additionally provide suggestions on skills and techniques which a mediator can implement.[4] Interestingly, none provide an overview or summary of these skills and analyse whether these skills and techniques should be used by a mediator. Therefore, this essay aims to answer the question: ‘Can a mediator be considered neutral and ethical when applying the practical skills and techniques developed in the research on theories of biases and heuristics that arise during the negotiation process?’
The emphasis in this essay is not on outlining the type of irrational behaviour that can occur during mediation, instead this essay aims to focus on practical skills and techniques for the mediator. Therefore, after an introduction into mediation in part II and behavioural economics in part III, part IV lists nine tools a mediator can utilise to mitigate irrational cognitive biases and heuristics. The current literature on behavioural economics and mediation stops here in its analysis, but this essay aims to contribute by shining an ethical light on these tools from the main concept of mediator neutrality. Part V explains the concept of mediator neutrality and part VI compares these nine tools to mediator neutrality and ethical considerations. The main thesis of this essay is that mediators, according to the literature, cannot be considered neutral in general and that when the nine distinguished tools are used by a mediator, the mediator can become compromised and even considered unethical. This is the case because, just as the parties, a mediator can have cognitive biases.
Mediation is a form of dispute resolution where a neutral third party facilitates the settlement of a dispute.[5] In mediation the focus is not on persuading a third party (a judge for instance) on the merits of a case, instead the focus is on persuading the other party to agree to a settlement.[6] During these negotiations, a mediator can take up a facilitative, evaluative or transformative role.[7] In the transformative model the focus is not only on achieving a settlement, but also on transforming the relationship of the parties.[8],[9] In the evaluative model, the mediator takes on an active role and may even suggest options for settlement.[10] Parties are guided to understand their case[11] and an active assessment of each sides’ strengths and weaknesses takes place.[12] The mediator can use interventionist strategies and apply pressure or even manipulate the exchange of information.[13] These two ‘active’ models of mediation stand across from the traditional facilitative model. In the facilitative approach the mediator is passive and merely encourages the parties to communicate and find their own solution to the settlement.[14] Under this approach the parties’ autonomy is central and the mediator will emphasise self-determination and the responsibilities of the parties.[15] The mediator does not make an assessment, use interventionist techniques or shares an opinion on the merits of the case.[16] The ultimate responsibility for settlement of the dispute is on the parties themselves.[17]
No matter what type of model is used, mediation focusses on the parties and obtaining a settlement favourable for both through decision-making in negotiation. Central to mediation is the decision making power of the parties themselves. This is opposed to adjudication where the power lies with the judge.[18] Decision-making in mediation is related to a dominant social paradigm derived from standard micro-economic theory.[19] This theory is based on the assumption that individuals make decisions informed by two main elements, rationality and self-interest.[20] Such individuals are referred to as Homo Economicus[21] and make decisions focused on maximising their profit in line with relevant costs and benefits.[22] However, research in the field of behavioural economics has taught us that Homines Economici do not exist, as humans are irrational and make cognitive errors.[23]
Behavioural economics challenges the standard conceptions of rational decision-making in micro-economic theory and concludes that humans are predictably irrational.[24] Irrationality stands across from rational thinking which is based on the objective functioning of the cerebral operations of thought, logic, analysis and linear thinking.[25] However, since humans are irrational and their decisions are made by visceral reactions to external emotional stimuli and induced by internal biases,[26] it is suggested that people should be guided differently during the negation process.[27] Emotion and perception will influence the negotiations. To enable the mediator to enhance the negotiation experience, these “irrational” aspects should be dealt with. Especially because decision-makers are usually unaware of the factors that affect them.[28] These factors are often referred to as biases and heuristics. A bias, in this context, is a cognitive bias which is a systematic error in thinking. There is a deviation from what would be considered desirable and correct in terms of logic. The application of heuristics is often associated with cognitive biases.[29] Heuristics are mental shortcuts that lead to systematic errors in decision-making.[30]
Based on the research of these psychological biases, it is suggested that a mediator should act in such a way to eliminate the influence of biases during negotiation.[31] A mediator should actively aim to de-bias parties and help them to decide rationally. This means, wanting to incorporate the learnings from behavioural economics into the mediation process, a mediator cannot act purely facilitative, but must implement the evaluative model.[32] The mediator must go beyond merely assisting the parties, especially since merely warning people of psychological biases often has little impact.[33] Therefore, different skills and techniques have been distinguished in the literature on the use of behavioural economics theories in mediation. These skills and techniques are summarised in nine tools outlined below.
It is suggested that the mediator can keep account of the concessions each party makes during negotiations in order to address biases that may arise due to social preference theory. According to this theory, parties do not only choose and make decisions directed by self-interest and their material pay-off.[34] Instead, parties assess how their gains and losses compare to those of the other party.[35] If it appears that the other party may receive a more beneficial outcome, the proposal can still be rejected, even if there is an economic gain. Often parties seek to restore equity and are not merely after monetary compensation when trying to resolve a dispute.[36] However, by having the mediator keep account and showing both parties that both are making concessions, parties may be more inclined to accept a proposal otherwise perceived as not equally beneficial enough.
One of the most known and beneficial tools is re-framing, where the mediator reframes arguments or proposals in such a way it provides a new perspective for the parties.[37] Re-framing directly addresses the known bias of framing effects. People have different reactions and make different decisions depending on how the information is framed and presented. When the same uncertain choice is presented as a gain, instead of a loss, people are more prone to make a risk-averse choice.[38]
In addition, re-framing can help with the cognitive illusion of loss aversion. Studies have shown that losses have a bigger impact on how parties decide than equivalent gains. Parties use a heuristic to determine whether the proposal would be a gain or a loss. This is important because if it will be classified as a loss, the proposal will more likely be rejected than if it would be classified as an equivalent gain.[39] By re-framing the proposal in such a way it is perceived as a gain, the chances of reaching a settlement increase.
Further, loss aversion is related to the endowment effect. The endowment effect refers to the phenomenon that parties attach more value to a good if it is seen as “theirs” (their property/endowment).[40] It is suggested that people attach emotional and subjective value to the items in their possession and overvalue the item compared to an objective value.[41] Therefore, by re-framing the value of an item for both parties, the objective and subjective values may become more aligned.
Lastly, re-framing tackles reactive devaluation which is the tendency that a party devalues a choice because it was proposed by the opposing party.[42] The receiving party irrationally believes that the offer by the opposing party is always less beneficial. [43] By having a third-party mediator bringing the proposal, instead of hearing it directly from the opposing party, this bias can be lessened.
This tool refers to the mediator asking the parties for multiple options. If the parties are having difficulties coming up with other options, the mediator may step in and provide alternative options.[44] Multiple options can be used in line with hyperbolic discounting which refers to the fact that the value of a benefit in a proposal drops significantly in relation to small delays but slower with longer delays. This heuristic can be applied in relation to time-bound mediation outcomes, such as deferred payment arrangements. A party is more likely to accept a proposal with a longer payment option provided that the final figure is greater.[45]
In addition, providing multiple options helps parties in dealing with choice relativity, as people seldom make choices in isolated circumstances and value items in terms of their relativities.[46] By providing multiple options, including one which may be considered extreme, the proposed options may seem more attractive.
This tool is probably one of the most known tools for mediators to use during mediation. The mediator makes both parties examine what they perceive as possible weaknesses in their cases and then helps them consider what the implications are of these weaknesses. Consequently the mediator can change the parties’ perspectives and have them reassess their positions.[47] Reality testing works well to combat positive illusions of parties, such as perspective bias. People, in general, have difficulties separating themselves from their role in a dispute. This means a party’s perspective determines how the dispute is experienced. Even when both parties receive the exact same information, each party tends to exert a bias to their position and role in the dispute and evaluate the information from that perspective.[48]
A different type of a positive illusion is the confirmation bias which is the tendency of people to only accept evidence that supports their position and ignore, or marginalise evidence suggesting the opposite.[49] Another positive illusion bias is optimism bias, referring to the fact that people tend to over-estimate their abilities.[50] Furthermore, the optimism bias also refers to people having overly optimistic predictions about events that may occur in the future. People believe that the chance an event that would be favourable for them will happen is more likely than statistics indicate. [51]
By reality testing, mediators can de-bias parties by showing the statistics and taking away the overly optimistic predictions. This technique is also beneficial to deal with egocentric bias, since people tend to judge themselves and their abilities in a way that is “egocentric” and “self-serving”.[52] When reality testing and reviewing the weaknesses in their case and the possible strengths in the opposing party’s case, parties will be able to deal with these biases.
Another heuristic that can be combatted with this tool is the affect heuristic, or also referred to as the inverse fallacy. This heuristic causes parties to not make decisions in terms of logic and determination, but in terms of feelings and affect.[53] This is the case because people tend to discount the importance of statistics, such as the general prevalence of a particular category. Again, by providing the proper statistics and reality test, parties will fix their erroneous mental shortcuts and make decisions which seem more rational.[54]
Lastly, this tool can be beneficial in tackling impact bias. This bias refers to the tendency to overvalue the impact of a future uncertain situation. During negotiations, parties may prefer to reject a proposal and continue litigation because the future uncertainty is overvalued, in comparison to an offer that is a fixed amount.[55]
This tool refers to the mediator actively trying to understand the reason why a conflict has arisen between the parties (the history of parties’ relationship) before the legal considerations are discussed.[56] This tool is especially beneficial to combat attribution bias, the availability heuristic and the concept of equity seeking.
The attribution bias refers to the tendency of people to blame their bad experience on improper causes.[57] People can understand and explain a situation differently and either apply a dispositional or situational characteristic. If a party chooses to apply a dispositional characteristic, the situation is seen to be controllable and thus when a negative result arises, this can be attributed to the one who caused the result (the person is to blame). However, if the situational characteristic is applied, the situation is understood to be non-controllable and the negative result is not attributed to the person but to the situation (the person is not to blame).[58] By understanding the conflict and its factual reasons, a mediator can understand whether the situational or dispositional characteristic has been applied and use another tool such as re-framing to combat the attribution bias.
The availability heuristic refers to the tendency of people to judge a situation based on immediate experiences or recent information and providing them too much weight when making decisions.[59] By understanding more than just the legal conflict, but also the history of the case, a mediator may be able to point out to a party the disproportional emphasis on one event in comparison to other events. In line with this, understanding the history will aid in managing parties’ expectations of the settlement. Parties, in general, want to restore equity in an inequitable relationship, which goes beyond merely monetary compensation.[60]
Lastly, background information can help when dealing with the self-serving bias, which refers to the tendency of people to remember and weigh the side of an event in line with their position more than of the opposing party.[61] Therefore, when the mediator understands all the facts, she can outline both sides and mitigate the effects of the self-serving bias.
The mediator helps parties to evaluate the offer objectively and can offer her opinion on its reasonableness.[62] This tool is essential to combat the known phenomenon of reactive devaluation (also discussed in re-framing). Parties irrationally may devalue an offer because it was offered by the opposing party[63] and by discussing its reasonableness the receiving party may realise that their bias against the proposal is merely there because it is the opposing party offering it.
This tool refers to the mediator understanding the assumptions each party has made, reassessing these with the parties and ultimately challenging them if necessary.[64] This can be a good strategy to deal with the positive illusions, such as confirmation bias, optimism bias and egocentric bias, as similar to reality testing. However, by challenging assumptions, other biases can be dealt with too such as the anchoring bias and hindsight bias. The anchoring bias refers to how a quite unrelated number, that a person’s mind focusses on, can influence the outcomes in a situation.[65] The anchor functions as a mental shortcut when an estimate is being made.[66] By challenging the anchor, which is an assumption, a party may realise that their expectation is based on a number that may be unrelated to the situation at hand.
Hindsight bias refers to the tendency of people to overestimate their own ability to predict the past and believe others should have been able to predict the event better than was possible.[67] The party is assuming the other party should have known better since they know better. However, assumptions are made and parties forget the many factors influencing the decision-making at a certain time. Therefore, challenging the assumptions based on hindsight bias will make a party look at the situation more objectively.
Even though merely warning people of psychological biases often has very little impact[68], certain biases can be lessened when parties are made aware of them. This is especially the case for attribution bias and perspective bias. Once the mediator understands the reason for conflict and what type of attribution (dispositional or situational) has taken place, the mediator can explain and influence the party to lessen the impact of the bias. The perspective bias refers to the fact that people in general have great difficulty separating themselves from their role in a dispute and thus cannot view the dispute objectively.[69] By pointing this out to parties, they may be able to take a more objective stance to the facts of the case and the proposal.
However, a bias that definitely cannot be combatted by education is loss aversion. This is the case because loss aversion (losses have a bigger impact on how parties decide than equivalent gains) is like an optical illusion in the parties’ minds. Just explaining that there is an irrational illusion will not necessarily enable them to combat this bias.[70] In the circumstance where the mediator recognises the presence of the loss aversion bias, re-framing would be a more appropriate tool to apply.
The mere structure of mediation can also mitigate certain irrational biases, due to the presence of a neutral third-party. This especially has an effect for reactive devaluation. The mediator can act as a buffer during negotiations, by relaying information and settlement proposals. Since the offer does not directly come from the opposite party, the chance that the receiving party devalues it irrationally decreases.[71]
As established in part III, if a mediator would utilise these tools, she would diverge from a purely facilitative role into an evaluative role. The mediator actively helps the parties understand their case by de-biasing the parties to ensure they can foster a settlement. However, as explained in part II, mediation is a form of dispute resolution where a neutral third party facilitates the settlement of a dispute.[72] An important (ethical) element is the neutrality of the mediator. Therefore, in line with the overall research question, can a mediator be considered neutral if it is actively assessing the strengths and weaknesses of each party and using interventionist strategies, constantly re-framing and selectively challenging assumptions?
A core component of mediation is that the content of negotiations is owned by the parties and it is their responsibility to reach a settlement.[73] Handbooks usually refer to the role of the mediator as being facilitative which means the mediator merely assists the parties to navigate the negotiation process. Therefore, mediation is considered a self-determinative process that relies on party-autonomy.[74] Party-autonomy implies that the parties involved can think for themselves and make their own decisions. The role of the mediator should be neutral and the mediator does not get involved in the content to influence the parties in any way.[75] Neutrality in mediation is considered so important, writers often use the terms neutral third-party and mediator interchangeably and in some networks the principle of neutrality has been given ethical status.[76]
In the literature neutrality is often equated with impartiality and even-handedness.[77] Impartiality refers to the absence of bias due to personal values, preconceptions and preferences of the mediator. This means it is considered a problem when the mediator has an existing or developing relationship with the parties.[78] In addition, to be neutral, the mediator must guard against their impact on the content and outcomes. However, these concepts of neutrality have been challenged in practice[79] and it is clear that the nine tools described above will impact the content and outcome. This is not surprising and it is even the case that according to research, mediators subtly advocate their own views. They do this by working against agreements they consider unfair or inappropriate.[80] Therefore, mediators influence the outcomes of negotiations.[81] The concept of mediator neutrality in theory thus does not align with practice. In addition, the concept of neutrality also refers to it being an antidote to bias.[82] However, since absolute neutrality is not possible, neither is the total exclusion of bias on the side of the mediator.[83]
The problem of the non-neutral mediator becomes more complicated when considering the fact that neutrality also means even-handedness in how the parties should be treated. Power imbalances are almost inherent to conflict.[84] Parties in conflict are thus often unequal and treating the parties equally would result in inequality.[85] In an attempt to address a power imbalance between parties, even-handedness is substituted for the strategy of “equidistance”. This strategy comes down to treating parties unequally to bring about equality in bargaining power.[86] However, treating parties unequally means that the mediator must be active, form opinions and even apply bias which would go against the ethics of mediation.
No matter from which angle a mediation process is looked at, bias seems to be ever present, both in the parties and the mediator. The process is built, just like micro-economics, on the assumption that parties and the mediator are rational people. However, no human is rational and free of biases. This is often the reason why parties need assistance during negotiations that goes beyond helping parties navigate the process. Biases and heuristics can prevent parties from ever reaching settlements and nine tools are distinguished that can help a mediator deal with human irrationalities. However, since it is established that a mediator cannot be considered neutral and compared to the “original” facilitative model with the ethical principles tied to the field of mediation, can these nine tools be considered ethical? Is it ethical to use the pitfalls of human irrationality against people who merely approach mediation with the idea a neutral third party will enable them in reaching a settlement?
Neutrality remains an important part of mediation and is an ethical requirement in the National Practice Standards.[87] Authors Coben and Love provide two criteria to determine whether a tool used by a mediator could be considered ethical. Firstly, the tool must further or help a legitimate party or process goal. It must advance a party’s self-determination in decision-making.[88] Secondly, the mediator must not act in a manipulative way that disadvantages one side or undermines the integrity of the mediator or mediation process. This means, the more hidden or secret a “tool” is, the more problematic it will be.[89] Educating both parties on their cognitive biases is clearly not secret as the mediator is trying to inform the parties of their potential errors in decision-making. However, it is less obvious when the mediator is providing alternatives that seem extreme to tackle choice relativity and to make a proposal look better than it actually is.
Also, mediator’s biases should not be underestimated, especially when the mediator uses the tool of understanding the complete history of the relationship of the parties. The mediator may, subconsciously, align herself with or against a party due to personal reasons. This could then translate itself during the process into the mediator using the mediation process against a party and subtly direct the outcome of settlement in accordance with their own preferences.[90] This is the reason why mediator neutrality explicitly mentions that the mediator should not development a relationship with the parties.[91]
In general, it seems that tools such as keeping account, educating parties about their possible biases and heuristics and the inherent structure of mediation do not necessarily influence parties adversely. As long as the information is provided to both parties and a mediator does not purposely leave out information or lies. However, the other tools described in the literature to influence parties’ decision-making, such as re-framing, providing multiple options, assessing the reasonableness of a proposal, understanding the reasons for conflict, reality testing and challenging assumptions can easily include the bias of a mediator and lead to manipulation. Especially since the personal responses of the mediator can be subconscious and she may equally be unaware of her own biases and their subsequent impacts.[92] For instance, it is often the case that the side that first told the story framed the agreement. [93]
In addition, it is known that mediators engage in manipulation to reach settlements, often using the rationale of self-determination.[94] For instance, a mediator can assert their own biases by only challenging certain assumptions or reality test only certain proposals. Or by providing extreme options to make an option, that is according to them reasonable, look better or re-framing less positive proposals more positively than they actually are. However, these nine tools do not inherently have to be unethical. Self-awareness is an important component of mediation training[95] and just as the mediator is aware of the biases and heuristics of the parties, a mediator should be aware of hers as well.
To conclude and answer the main question in this essay: ‘Can a mediator be considered neutral and ethical when applying the practical skills and techniques developed in the research on theories of biases and heuristics that arise during the negotiation process?’ This essay outlines nine different tools drawn from the literature on behavioural economics on how a mediator can mitigate certain types of biases and heuristics in parties during negotiations. These tools can help to foster a settlement between parties in a dispute as a mediator can use certain practical skills and techniques. However, according to the traditional frameworks on mediation, a mediator is considered a neutral third-party that should merely promote self-determinism and the parties themselves are responsible for reaching a settlement. By having a closer look at the role of a mediator in practice, especially when applying these types of tools, the theory on a neutral mediator does not seem to align with the actual role a mediator plays. In practice, a mediator is actively trying to de-bias parties, which means the mediator must use the opinions she has formed about the parties and apply biases that, in her opinion, will ensure equality and even-handedness. However, this is not in line with the theoretical expectations of the role of a neutral and ethical mediator, but often necessary to reach a settlement. Therefore, the answer to the question, whether a mediator can be considered neutral and ethical when applying the tools identified through behavioural economics, is not a straight-forward yes or no. In addition, further complications arise due to the fact that not just the parties have cognitive biases, but also the mediator herself. A mediator uses these tools can, therefore, in circumstances become unethical as the she can be biased without realising and try to influence the outcome based on her personal predispositions.
A Articles/Books/Reports
Ariely, Dan, Predictably Irrational (Harper Collins, 1st ed, 2008)
Boulle, Laurence, ‘Predictable irrationality in mediation: Insights from behavioural economics’ (2013) 24 Alternative Dispute Resolution Journal 8
Borah, Bornali, ‘Being the Ladle in the Soup Pot: Working with the Dichotomy of Neutrality and Empowerment in Mediation Practice’, (2017) 28 Alternative Dispute Resolution Journal 98
Bush, Robert and Joseph Folger, The promise of Mediation: the Transformative Approach to Conflict (Jessey-Bass, revised ed, 2005)
Charkoudian, Lorig, et al ‘Mediation by Any Other Name Would Smell as Sweet—or Would It? The Struggle to Define Mediation and Its Various Approaches’ (2009) 26(3) Conflict Resolution Quarterly 293
Cobb, Sara and Janet Rifkin, ‘Practice and Paradox: Deconstructing Neutrality in Mediation’ (1991) American Bar Foundation 35
Coben, James, ‘Mediation’s dirty little secret: Straight talk about mediator manipulation and deception’ (2000) Alternative Dispute Resolution Journal 4
Coben, Jim and Lela Love, ‘Trick or treat? The ethics of mediator manipulation’, (2010) 17(1) American Bar Association 1
Douglas, Susan, ‘Constructions of neutrality in mediation’, 23 (2012) Alternative Dispute Resolution Journal 80
Gorrie, D, “Mediator Neutrality: High Ideal or Scared Cow?” in Fisher L (ed), Conference Proceedings, Famcon ’95 (3rd National Mediation Conference, Sydney, 1995)
Guthrie, Chris, et al, ‘Judging by heuristic - Cognitive illusions in judicial decision making’ (2002) 86 Judicature 44
Hardy, Samantha and Olivia Rundle, Mediation for lawyers (CCH, a Wolters Kluwer business, 1st ed, 2010)
Kahneman, Daniel, Thinking, Fast and Slow (Penguin Random House, 1st ed, 2011)
Ko, Haksoo , ‘On the role of Mediator: A behavioural economics perspective’ (2009) 17 Asia Pacific Law review 195
Mulcahy, Linda, ‘The possibilities and desirability of mediator neutrality – towards an ethic of partiality?’ (2001) 10(4) Social & Legal studies 505
Watkins, Daniel, ‘A nudge to Mediate: How adjustments in choice architecture can lead to better dispute resolution decisions (2010) 4 American Journal of mediation 19
Wolfe, Peter, ‘How a mediator enhances the Negotiation process’, (2005) 46 New Hampshire Bar Journal 38
Zou, Qi,‘ Judicial Mediation: A behavioural Law and Economics Perspective in Qiao Liu and Wenhua Shan (eds) China and International Commercial Dispute Resolution (Brill | Nijhoff, 1st ed, 2016)
B Other
National Mediator Practice Standards, Practice standards for mediators operating under the National Mediator Accreditation System, September 2007
[1] LL.B, LL.M (Cum Laude). I would like to thank Australian Barrister and Mediator Philippa O’Dea for her assistance and encouragement. All errors are my own.
[2] Dan Ariely, Predictably Irrational (Harper Collins, 1st ed, 2008); Daniel Kahneman, Thinking, Fast and Slow (Penguin Random House UK, 1st ed, 2011).
[3] Samantha Hardy and Olivia Rundle, Mediation for lawyers (CCH, a Wolters Kluwer business, 1st ed, 2010) 1.
[4] For instance: Laurence Boulle, ‘Predictable irrationality in mediation: Insights from behavioural economics’ (2013) 24 ADRJ 8; Qi Zou,‘ Judicial Mediation: A behavioural Law and Economics Perspective in Qiao Liu and Wenhua Shan (eds) China and International Commercial Dispute Resolution (Brill | Nijhoff, 1st ed, 2016); Peter Wolfe, ‘How a mediator enhances the Negotiation process’, (2005) 46 New Hampshire Bar Journal 38.
[5] Zou (n 4) 333-334.
[6] Ibid.
[7] Lorig Charkoudian, et al, ‘Mediation by Any Other Name Would Smell as Sweet—or Would It? The Struggle to Define Mediation and Its Various Approaches’ (2009) 26(3) Conflict Resolution Quarterly 293, 294.
[8] Robert Bush and Joseph Folger, The promise of Mediation: the Transformative Approach to Conflict (Jessey-Bass, revised ed, 2005).
[9] This model will not further be discussed in this essay since the emphasise in behavioural economics is on the differences between the evaluative and facilitative mediation model.
[10] Haksoo Ko, ‘On the role of Mediator: A behavioural economics perspective’, (2009) 17 Asia Pacific Law review 195, 196.
[11] Zou (n 4) 345.
[12] Ko (n 10) 196.
[13] Zou (n 4) 345
[14] Ko (n 10) 196.
[15] Ibid.
[16] Zou (n 4) 344.
[17] Ko (n 10) 196.
[18] Zou (n 4) 344.
[19] Boulle (n 4) 9.
[20] Ibid.
[21] Daniel Watkins, ‘A Nudge to Mediate: How Adjustments in Choice Architecture Can Lead to Better Dispute Resolution Decisions’ (2010) 4 American Journal of mediation 19, 26.
[22] Ko (n 10) 197.
[23] Watkins (n 21) 26.
[24] Ariely (n 2).
[25] Boulle (n 4) 8.
[26] Ibid.
[27] Ko (n 10) 203.
[28] Boulle (n 4) 8.
[29] Ariely (n 2).
[30] Ko (n 10) 198.
[31] Ibid 203.
[32] Zou (n 4) 344.
[33] Ibid 339.
[34] Boulle (n 4) 12.
[35] Wolfe (n 4) 44.
[36] Ibid 42.
[37] Boulle (n 4) 14.
[38] Ko (n 10) 199.
[39] Wolfe (n 4) 42.
[40] Boulle (n 4) 13.
[41] Ko (n 10) 203.
[42] Ibid 201.
[43] Zou (n 4) 342-343.
[44] Wolfe (n 4) 39.
[45] Boulle (n 4) 13.
[46] Ibid 14.
[47] Wolfe (n 4) 44.
[48] Ibid 41.
[49] Boulle (n 4) 14.
[50] Wolfe (n 4) 41.
[51] Ko (n 10) 199.
[52] Chris Guthrie, et al, ‘Judging by heuristic - Cognitive illusions in judicial decision making’ (2002) 86 Judicature 44, 49.
[53] Boulle (n 4) 16.
[54] Guthrie, et al (n 52) 48.
[55] Ko (n 10) 202.
[56] Wolfe (n 4) 45.
[57] Zou (n 4) 340.
[58] Ibid.
[59] Ko (n 10) 203.
[60] Wolfe (n 4) 44.
[61] Ko (n 10) 200.
[62] Zou (n 4) 343.
[63] Ibid.
[64] Guthrie et al (n 52) 45.
[65] Boulle (n 4) 15.
[66] Wolfe (n 4) 43.
[67] Guthrie et al (n 52) 47.
[68] Zou (n 4) 339.
[69] Wolfe (n 4) 41.
[70] Ibid 42.
[71] Ibid 45.
[72] Zou (n 4) 333-334.
[73] Bornali Borah, ‘Being the Ladle in the Soup Pot: Working with the Dichotomy of Neutrality and Empowerment in Mediation Practice’, (2017) 28 Alternative Dispute Resolution Journal 98, 98.
[74] Ibid 98.
[75] Ibid.
[76] Linda Mulcahy, ‘The possibilities and desirability of mediator neutrality – towards an ethic of partiality?’ (2001) 10(4) Social & Legal studies 505, 509.
[77] Susan Douglas, ‘Constructions of neutrality in mediation’, 23 (2012) Alternative Dispute Resolution Journal 80, 80.
[78] Ibid 82-83.
[79] Ibid 83.
[80] D Gorrie, “Mediator Neutrality: High Ideal or Scared Cow?” in Fisher L (ed), Conference Proceedings, Famcon ’95 (3rd National Mediation Conference, Sydney, 1995) 34-35.
[81] Douglas (n 77) 83.
[82] Sara Cobb and Janet Rifkin, ‘Practice and Paradox: Deconstructing Neutrality in Mediation’ (1991) American Bar Foundation 35, 35.
[83] Douglas (n 77) 87.
[84] Borah (n 73) 101.
[85] Douglas (n 77) 85.
[86] Douglas (n 77) 85.
[87] National Mediator Practice Standards, Practice standards for mediators operating under the National Mediator Accreditation System, September 2007 Cl 5.
[88] Jim Coben and Lela Love, ‘Trick or treat? The ethics of mediator manipulation’, (2010) 17(1) American Bar association 1, 2.
[89] Ibid.
[90] Gorrie (n 80) 34-35.
[91] Douglas (n 77) 82-83.
[92] Ibid, 84.
[93] Cobb and Rifkin (n 82) 35.
[94] James Coben, ‘Mediation’s dirty little secret: Straight talk about mediator manipulation and deception’ (2000) Alternative Dispute Resolution Journal 4, 4.
[95] Douglas (n 77) 84.
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