The COVID-19 pandemic has forced the legal community—which by and large is averse to change—to embrace technology like never before. However, this swift transition to online lawyering has left little time to explore the myriad psychological factors that lurk unseen but can greatly influence outcomes.
That’s where Jean Sternlight comes in.
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, Sternlight has partnered with University of Illinois College of Law professor Jennifer Robbennolt to conduct a deep dive into the psychology of technology as it relates to modern-day conflict resolution practices. Their co-authored article, “High-Tech Dispute Resolution: Lessons from Psychology for a Post-COVID-19 Era,” examines two key issues: why and how the legal profession should consider psychology when deciding when to deploy technology (and when not to), and how psychology can determine which components work best in given situations.
“Courts, lawyers, private ADR providers, neutrals, and disputants themselves—they all 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, and 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.”
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 such psychological factors as fatigue, empathy, perception, and credibility.
Take, for example, the latter: Is a person more (or less) credible 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, which is expected to be published next year, 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.”