By Matt Jacob
It’s not exactly a classified secret that those who practice and teach law generally aren’t big fans of change. Then the COVID-19 pandemic hit, and the legal community was forced to embrace something many in the profession had long resisted: technology.
“Law has always been a pretty conservative profession—not conservative politically but rather slow to change,” says Jean Sternlight, the founding director of the Saltman Center for Conflict Resolution and Michael and Sonja Saltman Professor of Law at the UNLV William S. Boyd School of Law. “So while new technology obviously is being created at a rapid pace and has dramatically changed a lot of other professions, the law has been lagging. But what happened with COVID is the legal system got a major kick in the pants when it comes to technology.”
Whether through videoconferencing, teleconferencing or other modes of modern communication, technology has indeed kept the legal wheels spinning during the pandemic, first when much of the nation was adhering to stay-at-home orders and now when social distancing protocols remain in effect. But while many lawyers, judges and alternative dispute resolution (ADR) neutrals have come to appreciate—and even enjoy—the conveniences of technology, there’s still much to learn about the impact it can have on legal outcomes.
That’s where Sternlight comes in. With University of Illinois College of Law professor Jennifer Robbennolt, Sternlight is co-authoring an article titled “High-Tech Dispute Resolution: Lessons from Psychology for a Post-COVID-19 Era.” The article examines why and how the legal profession should consider psychology when deciding when it’s appropriate to deploy technology (and when it’s not), and how psychology can determine which components work best in given situations.
“Courts, lawyers, private ADR providers, neutrals, and disputants themselves—all of those groups have to make choices: What dispute resolution process will work best for their dispute, and how should they tailor that process to be most appropriate for their needs,” Sternlight says. “This has been true forever, but as we have more and more options with dispute resolution processes—we’re now considering all kinds of technical variations on litigation, mediation, arbitration, and negotiation—those choices become more complicated. So there’s an awful lot that these groups should be considering. … Focusing on some of the background psychology could really help everyone involved in a given case make good decisions on behalf of their disputants and on behalf of the public.”
This isn’t the first time Sternlight and Robbennolt have studied the impact of psychology on the legal industry. They co-authored the book Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation and Decision Making in 2013. The book explored aspects of cognitive and social psychology and considered how it could be useful to litigators in their daily tasks, such as interviewing and counseling clients, negotiating, and drafting documents. “This article is really an outgrowth of that same line of thinking, but now applying psychology specifically to the issues of dispute system design,” Sternlight says.
Just as teachers have had to adapt the way in which they structure a lecture for students attending classes online rather than in person, Sternlight notes that participants involved in dispute resolution must do the same when they meet virtually. Of particular importance is considering how technology might influence a multitude of psychological factors, including fatigue, empathy, perception, and credibility.
Take, for example, the latter: Is a person more believable when they write something online, when they make an in-person statement in a mediation, when they testify as a witness in a courtroom, or when they speak via videoconference?
“People are more likely to lie when they’re in a more anonymous setting—that distinction really does exist,” Sternlight says. “Also, we tend to believe people more when we’re closer to them. Another significant issue is rapport. It seems, and preliminary studies show, that it’s harder—but not impossible—to create good rapport in a videoconference [versus] in person. It’s different when you’re just looking at their face.”
Sternlight says the goal of her and Robbennolt’s article isn’t to persuade the legal community to abandon traditional means of dispute resolution and shift entirely to a high-tech way of doing business (or vice versa). Rather, they hope their research sheds a brighter light on the ways in which psychology and technology intertwine within the legal system.
“Psychologists have done a lot of work analyzing various communication approaches and how those approaches impact issues that are relevant to dispute resolutions,” Sternlight says. “Our article expands on that work with the hope that those in the legal community will use the information gleaned from our research to help decide which communication process they want to use and how best to structure it.”