Written by Laurence Boulle
[Free Image from Creative Commons]
The lengthy vote-counting procedures for the recent Australian federal election is about to conclude, creating opportunities for reflection and analysis.
There are manifest differences between political elections and the familiar forms of dispute resolution: this is noted but not developed here, other than citing the truism that there are many moving parts in mediations, litigation or arbitrations, on one hand, and electoral systems on the other, such that much depends on a viewer’s subjective perspectives on the two.
Similarities between the two systems might at first appear less prominent than the differences yet are arguably of interest to those undertaking daily dispute resolution duties. Followers of the ADR Network have previously read (in prose) about the associations between Poetry and Mediation and the question arises as to whether there are connections between Elections and well-known DR systems. This contribution is a DR perspective on some of the moving parts in the federal elections, with potential lessons for both systems.
The core approach taken here is the systems both involve choices for participants, in one case ostensibly based on contrasting political policies and promises and in the other ostensibly based on parties’ rights, needs and priorities and their options outside dispute resolution forums. This is where the connections can be drawn – human choices are ubiquitous in social systems and despite the varying and inconsistent circumstances in which they are made they have common impulses and dynamics. In brief, the similarities between the two systems are based on human irrationality and its exploitation.
Here I look at the elections through the eye of a dispute resolver, and then turn the gaze back on dispute resolution itself.
Idiosyncratic reflections on political matters are inevitably informed by an author’s confirmation biases and availability heuristics. As Forum devotees well know, neutrality is no longer a defining feature of DR processes, and colleagues such as Field and Crowe are about to demolish my own preferred concept of impartiality. As it is arguably better to be overt about one’s lack of neutrality, (and now impartiality!) I declare my interests at the end of the article. (Perhaps academic authors should be more ready to declare their convictions, but that is a subject for other non-impartial contributions.)
As noted above, at the meta-level elections and dispute resolution systems have at their core human decision-making, regardless of the medium, structures and procedures at hand. In both contexts there is an assumption of self-determination – that is discrete decisions are based, by respective voters and disputants, in terms of exercises in linear logic according to which they make objective assessments of costs and benefits, followed by utilitarian choices in voting, negotiating and the like. These Enlightenment notions undermine much teaching and learning in law, politics and dispute resolution.
The same notions have, however, been long abandoned in many academic and professional disciplines. Their tenure was made tenuous 400 years ago when David Hume, a product of the Enlightenment, informed us that, ‘Reason is the slave to our passions’. While Hume’s research impact assessment is not conspicuous in contemporary scholarly literature, whether political or dispute resolution, his views have been refined in contemporary thinking in many disciplines – cognitive psychology, behavioural economics and neurobiology to name a few. As observed throughout this piece, rationality in both politics and dispute resolution is jeopardised by the predictable irrationality, emotions and biases of the human mind.
At an impressionistic level, and in apparent obliviousness of A* imperatives in research networks I would contend that the recent federal election in Australia reflects, reinforces or reifies principles which have analogues in dispute resolution – and which DR practitioners require in their take-on luggage. Conversely DR practitioners might have contributions to make in political discourse when it loses its way.
The election outcomes were interpreted widely by winners and commentators as a ‘miracle’ and a ‘landslide’. In reality the election was decided on a relatively narrow basis. In terms of first preferences the government achieved 41.5% of the primary vote, a negative swing of 0.5%, against the opposition’s 33.3%, a swing of -1.4%. In terms of two-party preferred results the government attained 51.5%, an increase of 1.9% over the previous election. In terms of seats won and lost the government achieved a net gain of four seats over its previous tally and the opposition a net loss of four. As regards the Senate the results were also not as dramatic as portrayed in the media – with 38.3% of the Senate vote the government increased its seats by four, but did not attain a majority, with no net change in the opposition’s Senate numbers. The outcome did, significantly, elevate the government from minority to three-seat majority status in the lower house, but did not constitute a landslide, avalanche or other earthly movement as claimed in many quarters.
Dispute resolvers are familiar with what is at play here – assessments and perceptions, whether positive or negative, of DR settlements are a function more of expectations than of outcomes. Managing expectations is a prime responsibility for dispute resolvers and their representatives, designed to counter the optimistic over-confidence and confirmation bias commonly agitating their clients. The election evidenced the same disjunction between expectations and outcomes: a series of consecutive opinion polls over several years created solid expectations of an opposition win, which was confounded in reality by a combination of voter choices and vagaries of the preferential electoral system. For mediators and other dispute resolvers it confirms the importance of expectation management in the face of optimistic over-confidence and confirmation bias among clients and their advisers.
Framing Options for Choices
Expectations are created or managed, in part, by how options are framed and choices are presented to voters in electoral contexts. This is particularly significant in the contemporary ‘attention economy’ where there are infinite simultaneous and sequential demands being made on the consciousness of our finite brains. In this context the human brain can be overwhelmed by the demands of navigating uncertainty, and simple, and simplistic, frames of reference and slogans are more conducive to engineering intended outcomes than complex frames and complicated analyses, however profound. Despite their extraordinary potential powers human brains like ‘neat and orderly’ and can have difficulties coping with uncertainty.
In the federal election campaign the government used the slogan ‘Building our economy, securing our future’. The terms, however imprecise, have concrete associations and a wholesome tactile affect (and are linked to loss aversion referred to next). The opposition’s mantra was ‘A fair go for Australia’, a slogan more abstract and intellectual in content and tone. Needless to say there were many other ‘frames’ from both mainstream and minor parties during the campaign, relating to taxes, economic management, budget fairness, migrants and generational equity – sub-slogans beneath the shadow of the others. All parties framed their policies with different degrees of spin, transparency or concealment. Politicians and their minders are inveterate framers and reframers and remind us again of the power of words and language in decision-making contexts – people act in terms of their perceptions and perceptions are in part a function of language.
Dispute resolvers are, or consider themselves to be, the gold medallists in reframing: from positions to interests, from the past to the future and from one side’s toxic terminology to neutral language more palatable to the other. Framing and reframing are sometimes regarded as the quintessential skills of mediators and conciliators, designed to shift cognition in order to change behaviour. However even for veteran dispute resolvers there are salutary lessons from the election – how people perceive the world determines how they operate within it. Framing and reframing in both electoral and dispute resolution contexts challenges the assumed rationality of human decision-making.
Rationality and Affect
The rationality of the cognitive brain does not, in politics, disputes or life, inevitably prevail over emotions, whether instinctual or induced by rhetoric. We live in an age in which emotion often trumps rationality and feelings trump facts. Fear is the predominant feeling in both human and non-human animals and perceived relief from fear is a major motivator of choices and behaviours. The government made extensive use of terms such as ‘security’, ‘building’, ‘growth’ and ‘economic management’, terms likely to promote reward rather than retreat responses. Slogans relating to ‘taxes’, ‘pensioners’, ‘refugees’ and ‘shiftiness’, also heard during the campaign, had their own negative connotations, likely to invoke in some voters powerful, albeit unconscious, fear and retreat responses. Rational reasoning and argumentation are frequent casualties of the biases and heuristics referred to in this note. Indeed, political argument feels sometimes more like conflict – the proper domain of dispute resolvers.
Dispute resolvers have long operated with the understanding that all decisions have an emotional base, despite the apparently rational logic of the ‘law, facts and evidence’. When the cognitive brain does come into the equation it is not reason which overrides existing feelings but the reason-induced countervailing emotions which cause disputants to change their minds. The rational mind is, however, important in providing justifications for decisions reached on an emotional basis – it allows us to validate and defend decisions, such as settling for less than our legal ‘entitlement’, in order to diminish our cognitive dissonance – to have factors with which to convince friends, loved ones and workmates, about the probity of our decisions. Despite the differences in electoral politics dispute resolvers can reinforce understandings of human behaviour in their domains from observing voting behaviours in the campaign.
Averting Loss and Seeking Gain
Linked to the framing and predictable irrationality factors is the reality that people are motivated more by fear of loss than they are by the hope of gain – part of the primitive survival instinct still prevalent in current times. We are loss averse beings, which got homo sapiens through difficult physical circumstances in history to where we are today. The loss/gain balance in the federal election was not one-sided, both sides appealing to both elements of the equation. However the meta-context in today’s state of the nation is a prevailing sense of loss perceived by many people – as a consequence of competition policies, employment insecurity, stereotypes of migrants, wage stagnation and uncertain futures, inducing a paradoxical scarcity syndrome in one of the most affluent countries in the world. However real or not these factors might be perceptions are more important than facts, and facts on matters such as environmental realities and inter-generational equity don’t speak for themselves. Where there is already a wide-spread social perception of loss and fear in groups wanting to feel secure it is easy to exploit this in election situations.
Dispute resolvers are again well-versed in the art of addressing the factors of risk aversion and risk-seeking behaviour. They know that disputants see the world not how it is but how they are. They are, or should be, experts in mitigating perceptions of loss by reframing to gain such that parties will accept settlements to avoid unknown risks. They know that judgments about risk are, unobligingly, often based on identities and beliefs, not on careful evaluation of available evidence. Belief perseverance can prevail even where facts change (‘I expected X to happen but it didn’t which goes to show that it will’) and public commitments to beliefs tend to lock them in. This is an area where dispute resolvers still have much to learn.
Experts and Expertise
Today science and expertise have lost much of their acceptance and legitimacy. This is a complex phenomenon with many contributing causes but it is apparent in political elections and to a lesser extent in dispute resolution – referred to as expertise deficiency. Expertise is a product of slow analytical methodologies and can provide complex outcomes, whereas politicians can be quick and simple – if not simplistic. The views of scientists, by their nature, tend to be general in form and do not always take good account of the feelings and circumstances of particular individuals. Moreover statistics from scientists, economists and lawyers, don’t resolve disputes in themselves – they provide a basis for managing different conflict circumstances. In combination these factors have caused experts, particularly academics and increasingly scientists, to be regarded and described as privileged elites – even by the true elites. Increasingly scientists are seen as having and promoting their own agendas which do not accord with those of the ‘non-elites’. This is an ironic situation for science since experts and expertise cannot resolve democratic questions but their contributions should be able to narrow and define conflicts. The reaction against and disbelief in science and experts is a trend in many political and religious contexts, here and abroad.
This phenomenon has some resonance in dispute resolution situations. Legal representatives can be tempted to take the ‘inside view’ in relation to the probabilities of a client’s success at a future hearing – as opposed to starting their assessment with the ‘external’ base rate for the that kind of case, before taking account of the its peculiar features. While lawyers are themselves experts theirs is not an expert-based methodology. Courts have come some way in mitigating the ‘duelling experts’ phenomenon by creating systems for conjoint evidence and other dispute resolution systems have creatively managed their use of experts. In short, the displaced reliance on expertise found socially and politically is not as prevalent in dispute resolution systems, but the appearance of expertise deficiency elsewhere is a cautionary note for dispute resolvers.
The Time Factor
In terms of decisions with consequences in the intermediate- or long-term future there is a latent bias in human decision-making. It involves the propensity of most people to over-value current economic or other factors of value even when there is promise of greater value in the future – the intertemporal utility function. In the political context it means that current jobs in one industry, however short-term their tenure, are valued more highly than job forecasts in an emerging economic sector. There was abundant evidence of this in the election in relation to employment options in different areas of energy production, present and future. It is partly a function of the ‘marketisation’ of contemporary thinking – people are more likely to calculate the value of things in real time.
Dispute resolvers have partially come to terms with the intertemporal utility function with clients often over-valuing current financial outcomes even where later settlements would involve a greater quantum. For this reason experienced mediators do not over-do their ‘litigation misery’ speeches as clients cannot, in real time, project their current expectations and feelings into a future which could be two years away. Dispute resolvers are also familiar with the ‘time-value’ of money and the ‘endowment effect’ and how these can distort parties’ decision-making in negotiations. Needless to say time factors are easier to address in discrete dispute resolution events than in the clamour of national elections.
Style and Trust
People are influenced by those who are likeable and personable and show kinship with those they are attempting to influence. Conversely, they are less impressed by those who seem remote, wordy and abstract in their communication styles. Politicians are not exactly in a highly-trusted profession, like those who protect and rescue (think nurses and ambos) but everything is relative and protective and empathic language can well lead to respect, then trust. As the politico Napoleon advised, ‘…it’s not what’s true that counts but what people think is true’, and ‘affinity truth’ is a function of the style and perceived trustfulness of communicators. ‘In-group vs out-group’ thinking reinforces notions of trust and distrust in the political domain – the rise of tribal politics aggravates antipathy toward the Other, as was evident in warrior electoral rhetoric (and sense of relief once it was over).
Dispute resolvers are aware of the need to establish trusting relationships with clients, and of how easy it is for trust to be lost. Trust in mediators and mediation procedures by each side provides a bridge between parties who distrust each other. However some features of dispute resolution processes could have trust-defeating effects, particularly the use of shuttle meetings and avoidance of direct contact among parties. This tendency in some dispute resolution cultures enhances the ‘in-group/out-group’ syndrome experienced in contemporary politics. There are probably still lessons to be learned in this department by open-minded dispute resolvers. resolvers
DR Teaches About Elections, Elections about DR
There are many moveable parts in popular elections, some operating at conscious levels and others motivating electors unconsciously. No simple reduction can be made about why electors decide and choose in particular ways. However the cognitive and social biases and other heuristics referred to in this piece emphasise the non-deterministic nature of human decision-making in both electoral and dispute resolution circumstances. Needless to say some of these factors coincide with one another and others are mutually inconsistent but elections provide evidence of the expanding knowledge base required in the dispute resolution disciplines. And dispute resolvers have a significant knowledge bases, experiences and techniques to contribute to the understanding of political behaviour, particular in relation to the effects of biases and emotions in human decision-making. At the end of the day homo politico and homo disputatio might not be not that far removed.
That declaration: in the recent federal election the author worked for Getup in Warringah and for the Greens in Macpherson.
Laurence Boulle is Director of Independent Mediation Services Pty Ltd and Belle Wiese Professor of Legal Ethics at Newcastle Law School. He is grateful to Tony Spencer-Smith for insightful observations on a first draft.