Dear leaders and colleagues
The theme of my speech today is to explore how lawyers can give full play to the role of psychological cues in the process of "negotiation mediation litigation", so as to promote the development and settlement of cases more efficiently.
First, a small problem is introduced. Just imagine the two options now before you. A choice: you can get 100% of 100000 yuan; B choice. You have a 50% chance of getting 200000 yuan. How will you choose? Of course, I don't know everyone's specific choice, but according to the general survey of psychology, most people will choose to accept the firm 100000 yuan and give up the chance to get 200000 yuan. Because for us, we are so happy to get 100000 yuan that we are unwilling to bear the risk of losing it, even though we may get more.
Next, let's switch the options slightly. Suppose you are faced with two options: Option A: you will lose 100000 yuan 100%; Option B: 50% of you may lose 200000 yuan, and 50% of you will not lose anything. How do you choose this time? Similarly, according to the survey results of psychology, most people will choose to take risks this time. That is, I would rather risk losing 200000 than accept the fact that I am doomed to lose 100000.
Obviously, from the perspective of mathematics, the two groups of options under the two groups of comparison show the same mathematical expectations. That is, starting from pure reason, the latitude of gain and loss is the same. However, even the most professionally trained lawyers and negotiators cannot rule out all emotional factors to reach a pure rational state. Therefore, when people are faced with the same mathematical expectations, they show a certain tendency to choose. More importantly, in the face of gain and loss, the choice tendency is different.
This theory is called "loss aversion", that is, risk aversion theory, which was first published in Science in 1981. In the face of benefits, people seem relatively stable, tend to benefit the certainty, avoid risks; On the contrary, in the face of damage, people seem to be relatively aggressive, preferring to bear more risks than to accept the losses that have been determined at present. This theory can be seen everywhere in life. For example, in gambling, the winning party is always easier to stop, while the losing party is more and more aggressive.
Then, can this theory be applied to legal practice? Of course, the answer is yes. We know that in practice, a large number of cases will be settled through negotiation and mediation. In fact, the dynamic process of negotiation mediation litigation is full of gain and loss games and choices between the parties. Here, risk aversion theory plays an important but forgotten role.
Firstly, the theory of risk aversion helps us understand some judicial phenomena. In the large civil and commercial cases involving the subject matter of the case, most of the cases in which mediation failed were due to the defendant's rejection of the mediation proposal. This is because, in the mediation negotiation, the amount of mediation proposal must be less than the possible judgment amount of the relevant litigation. Therefore, the choice faced by the plaintiff is: first, to obtain the determined amount through mediation; 2、 Abandoning mediation and entering litigation, pursuing a larger amount but bearing the risk of losing the lawsuit. On the contrary, the defendant faces the following choices: first, pay the amount determined through mediation; 2、 Abandoning mediation and entering litigation may win the case without compensation, but at the same time, it must bear more risks of losing the case and paying compensation. Under the model of risk aversion theory, the plaintiff would prefer certainty, that is, to reach mediation; On the contrary, the defendant is more likely to enter the court to "fight"
Next, I will discuss how lawyers use the risk aversion theory to positively influence the choice tendency of mediation litigation. If the agent wants to facilitate mediation, he should adjust the "reference point" to make the mediation proposal a stable benefit in the eyes of the defendant.
In practice, both parties of negotiation and negotiation will set two values in mind. One is the bottom line value, that is, proposals lower than the bottom line value will not be considered; The second is the expected value, that is, the optimal result under objective rational analysis. Therefore, during the negotiation, only when a proposal falls within the overlapping area of the bottom line values of both parties can the proposal be accepted by both parties. However, the problem is that most people will preset the expected value as the reference point, so that any proposal that fails to meet the expectations is regarded as a loss, thus affecting the parties' choice tendency under the risk aversion model. In practice, if the lawyer wants to promote the defendant to reach a mediation, he can make the mediation proposal a benefit in the eyes of the defendant by constantly emphasizing the bottom line value and diluting the expected value.
The plaintiff's agent can also positively influence the defendant's gain and loss reference point. For example, the plaintiff may put forward a proposal close to but slightly lower than the defendant's bottom line value at the early stage of negotiation. Such a proposal will of course be rejected, but through repeated tug of war near the bottom line value, the reference point in the defendant's consciousness keeps moving towards the bottom line value.
On the other hand, if, for some reasons, lawyers and agents want to promote the case into the proceedings, they can make the mediation proposal a certain loss in the eyes of the parties by affecting the reference point of the parties to the mediation. The simplest way is to emphasize the expected value of both parties and dilute the bottom line value.
A more effective way is to emphasize to the parties, especially the plaintiff, the costs he has spent in this case. Each of us has the experience that the longer we wait for the bus, the more unwilling we are to give up the bus. Because everyone has such a consciousness, the cost, time or money that has been spent must be paid to be willing. The more money has been spent, the higher the expectation of income, even if the increase in expectation is irrational in many cases.
Therefore, emphasizing the upfront cost can promote the parties to pursue high risk and high return. In the process of mediation, if the agent reminds the parties, especially the plaintiff, of the legal fees, agency fees, fees for evidence collection and expert opinions he has spent in this case, as well as the time spent, the plaintiff's reference point of gain and loss will rise, thus making the mediation proposal that was originally used to determine the benefits become a certain loss in the consciousness of the parties.
However, one point must be emphasized. The premise of the application of risk aversion theory is that the amount involved is relatively large. If the amount involved in the case is insignificant, the parties will show the opposite selection tendency.
For example, in the first example, the amount involved in the case selected by both groups is 100000. If you change 100000 yuan into 10 yuan. We are faced with choices. We can get 10 blocks with 100% probability, 20 blocks with 50% probability, or 100 blocks with 10% probability. At this time, people will actively pursue risk, because 10 yuan is insignificant to most people, so they are willing to exchange the small income of 10 yuan for risk. Conversely, if you are faced with a loss option. 100% probability loss 10 blocks, 50% probability loss 20 blocks, 10% probability loss 100 blocks, 1% probability loss 1000 blocks. At this time, most people's choice reflects risk avoidance. That is, people prefer to bear certain small losses to avoid losing more risks.
This discovery plays an important role in the practice of lawyers. This shows that when predicting and grasping the choice tendency of the parties, it is necessary to combine the subject matter of the specific case and the affluence of the parties to judge whether the gain and loss latitude of the case belongs to small gain and loss for the parties. If so, the parties concerned will show a risk tendency to gain and a risk aversion to loss; On the contrary, if the latitude of gain and loss is not small or even important to the parties, the parties will show a risk aversion to income and a risk tendency to loss when making choices. This is a degree judgment problem based on facts, which requires lawyers to make judgments based on their own experience within the framework of theory.
Although my speech today only starts from a very specific issue, that is, the application of psychological risk tendency in the mediation litigation process, the application of psychology in legal practice is far more than that. How to persuade the judge in the court, how to obtain the trust of the client, and how to cross examine, the efficiency of lawyers in the application of these procedures largely depends on their grasp of psychology. In addition to risk propensity, there are also probability propensity, the "marginal effect" of gain and loss sensitivity, and self-confidence propensity. All these factors will affect a person's propensity to make the same choices objectively and mathematically. As lawyers, we must recognize and understand the existence of these psychological factors and try to explain and solve problems with these theories. Actively use specific strategies to use these psychological means, and when the opposing lawyer uses these means, he can effectively identify and prevent himself from making irrational choices.
The real purpose of my speech is to put forward a methodological proposal. In the judicial practice of lawyers, we should always remember that we apply the law, but we are facing people. This means that legal practice must be influenced by psychology, sociology and even anthropology, but it is not just a legal issue. "The life of law is not logic, but experience." Not only has Justice Holmes's remark not been falsified, but it has become more insightful in today's increasingly complex interpersonal and social relations. The modern legal system endows the parties with more powerful autonomy, both substantive and procedural. This means that the influence of the parties on the legal process and results is increasing. In this context, it is particularly important to study the behavior and psychology of the parties. As far as I am concerned, I have accumulated a lot of social experience since I worked in this institute, which makes me see and think of many problems that I have no chance to think about in school. So finally, please allow me to express my sincere thanks to all leaders and colleagues present here!