Call Us Now

Blog

Psychology in Alternative Dispute Resolution: The Value of an Apology or a Good Explanation – Part 2

Posted On: January, 24 2015

A series of experiments has demonstrated that “equity seeking” litigants are less likely to settle their claims out of court, and are less likely to defer to a rationally-justified settlement position.³ These are litigants who feel that they have been wronged on a moral level, not just on an economic level, and who are seeking moral redress.

 In a controlled experiment, researchers Russell Korobkin and Chris Guthrie devised a moot legal case involving a landlord-tenant dispute. The participants were told that they had a six-month lease to live in a particular apartment. Two months into the lease, the furnace malfunctioned. The tenant immediately advised the landlord, but he failed or refused to repair the furnace. The tenant spent the remaining four months of the lease trying to keep warm with a space-heater, while continuing to pay $1,000 a month in rent. The participants were advised that they had a “good chance” of recovering some of the $4,000 in rent they had paid to stay in an unheated apartment, but were not given an estimate of the likelihood of success, or the quantum of damages if successful. The participants were told that they filed a claim seeking to recover $4,000. The landlord offered to settle for $900.⁴ The experiment appears to have been designed with a low settlement offer that would not be overly enticing under normal circumstances.

The purpose of the experiment was to gauge the extent to which different explanations of the landlord’s behavior would affect the willingness of the tenants to accept the settlement offer, notwithstanding that the explanations had no legal or economic relevance. Group “A” was given the “broken promise” scenario, which was that the landlord promised to fix the furnace when notified, but failed to do so. Further calls to the landlord resulted in further promises, but no action and no explanation.

Group “B” was given the explanation that the landlord was twice notified about the furnace, but on the second phone call explained that he was dealing with a family emergency out of the country and could not return to deal with the issue. This was called the “family emergency” group.

Group “C” was given the same story as the “broken promise” group, but with the added information that before the trial the landlord approached the tenant and apologized for his behavior, saying he had been under a lot of pressure, and that his failure to act was inexcusable.

All three groups were advised that the landlord’s explanations were not legally relevant and would not be considered by the trial judge in determining the outcome of the case or the quantum of damages at a hearing.

The experimental data confirmed that Group “A,” or the “broken promise” group was the least likely to accept the settlement offer. Group “B” or the “family emergency group” was significantly more likely to accept the offer, and Group “C” or the “apology group,” was also more likely to accept the offer, but not as likely as Group “B” or the “family emergency group.” About 30% of Group “A” or the “broken promise” group indicated that they would “definitely reject” the settlement offer, while only 12% of the “apology group” gave the same answer.

The designers of this particular experiment hypothesized that the results demonstrate that litigants are often concerned with the status of their moral rights relative to the defendant, and not just monetary compensation. The experiment demonstrates that even a relatively weak explanation or a very qualified apology, can improve the uptake of a settlement offer by a statistically significant margin, likely by permitting the plaintiff to see him- or herself restored to a position of moral equality with the perceived wrongdoer.

3 Russell Korobkin and Chris Guthrie, “Psychological Barriers to Litigation Settlement,” 93 Mich. L. Rev. 107 1994-1995 at 149.

4 Korobkin and Guthrie, “Psychological Barriers to Litigation Settlement,” at 145.

5 Russell and Guthrie, “Psychological Barriers to Litigation Settlement,” at 148.

6 Russell and Guthrie, “Psychological Barriers to Litigation Settlement,” at 149.

 

Contact Us

RECENT NEWS & EVENTS

5 STAR REVIEWS

  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by SB

    I just wanted to let you know how happy I am with the outcome and how very grateful I am for the guidance and support that you and your team provided.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by Google user

    Patrick James is really a great lawyer who is smart and great to deal with. He's been our litigation counsel for over 5 years on several different matters. Patrick recently gave our company great strategic advice that resulted in a big commercial litigation win for our company. He's fierce, tenacious, and really cares about getting the best outcome for his clients.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by Google user

    Patrick is a very good lawyer. He recently successfully defended a lawsuit against my company and has pursued several litigation claims for us in the past. All claims settled input favour. Mr. James is smart and quickly gives you great strategic advice. Patrick has been a real asset to our business.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by Sandra L.

    Andrew Wray and Patrick James recently helped settle a difficult situation for me and my family. The results were exactly what we were hoping for. They are honest, strategic and will provide you with the best advice for you and your financial situation. I highly recommend them to everyone I know.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by Mark C.

    Their team is highly focused and incredibly professional - from our experience it would be difficult not to believe that Pinto Wray James are one of Ontario's leading Firms in Labor and Employment law. The mindful client care and complete understanding of the case eased fears and the stress that comes with any legal dispute. Expect to find high level smartly crafted legal solutions at Pinto Wray James LLP - couldn't recommend more.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by Sherry C.

    Patrick is knowledgeable, strategic, supportive, and patient. His guidance and advice helped me to maintain focus and to keep things in perspective. His experience and keen perception provides him with an edge that allows him to assess the situation, the people involved, and to offer a strategic resolution that works best for all involved. If you ever require legal advice and assistance, I highly recommend him and his team. They will be there 100% for you.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by Christian V.

    Patrick is a fearless advocate for diverse clients. His strategic approach, and his empathy, are what set him apart as a litigator, and champion of the underdog.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by A Google User

    I have no hesitation recommending Andrew Wray of Pinto Wray James LLP. He provided me with legal advice regarding an employment law issue and his council was practical and honest. Andrew's approach is very much one of blending legal excellence with good common sense. An excellent lawyer!
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by Larry S.

    Patrick listens to his clients and shows compassion, empathy and professionalism. He cares deeply that the individual that has been wrongfully terminated gets the best judgment available to him. I would not hesitate in recommending him to friends or family.
Submit