Image: Shutterstock.com

Psychology can contribute substantially to the practice of law as it provides insights into how people think, feel, behave, what motivates them and how they arrive at decisions – particularly to contentious matters, as any dispute involves strategic considerations and making choices based on communication, negotiation, persuasion and conflict resolution.

Moreover, in circumstances when many disputes settle before reaching trial or a final hearing, applying psychological tools in the right way can help in reaching a settlement at an earlier stage and with a better (and less costly) result for the litigants.

The issue can become more pronounced when a client or their opponent(s) is / are domiciled outside the UK. Very often, they will have had a very different experience dealing with disputes, and understanding their mind-set is vital to managing the dispute efficiently.

Dealing with the client

The first difficulty that a litigant with little or no experience of English-style adversarial proceedings may face is accurately understanding the legal advice they receive on the prospects of their own case and that of their opponent. 

More often than not, they will have their own ideas about what constitutes a "strong" and "weak" case based on experiences in their home jurisdiction. 

In describing the facts, a foreign client may well concentrate on what should and would be crucial back home and omit facts and circumstances that are critical in the jurisdiction in which the dispute is actually being fought. 

To use an example – in litigation in Russia, facts must be supported by documentary evidence, otherwise they are almost always deemed unproved by the Russian courts.  There is no common law-style cross examination of witnesses in Russian civil proceedings and therefore Russian clients will not necessarily appreciate that untrue statements made by witnesses in English proceedings will most likely come to light. 

A Russian party that is inexperienced in how cases are tried in the English courts therefore may not mention undocumented facts if they consider that it would be pointless to place them in front of the judge. Conversely, the same party may overestimate the importance of documentary evidence and not give enough consideration to the performances of their witnesses under cross examination. 

In English proceedings, this latter mistake can be catastrophic. It can lead to an entire case falling apart. 

It can be a lengthy process to help such parties fully appreciate what matters in English-style disputes. The capacity of human beings to receive new information is finite and their ability to interpret it is influenced by pre-conceptions, bias and past experiences.

Such clients may well not understand the true meaning of the advice given to them and this can result in poor decision-making, for example as to how to plead their legal case. An English lawyer advising such clients should consider spending time at the outset of the matter properly explaining how the English legal system operates and what causes of action and remedies are in fact available under English law to achieve the desired outcome.

Misperception can also work the other way around. At times, it may be difficult for an English lawyer fully to appreciate their foreign client's concerns as to the potential implications of their dispute in England on what may or may not happen in their home jurisdiction. Obtaining a proper understanding of the commercial, legal, regulatory and political context in which the client is forced to operate at home can focus discussions. 

Dealing with opponents

Having an awareness of these cultural and psychological issues is also important when developing tactics against opponents. This is because, in practical terms, English lawyers rarely communicate directly with an adverse party, but instead communicate through the adverse party's own lawyers who may well be facing similar cultural and psychological issues.

Understanding how an opponent from a different jurisdiction thinks, plans, and makes decisions can therefore be a very useful tool. 

Some parties will be very sensitive to the details of their case becoming public and filtering back to their home country. Some opponents from jurisdictions where confidentiality is not the norm / not protected as it is under English law, may not respect the confidentiality of arbitral proceedings, and may have no hesitation in putting awards or orders made by the Tribunal before the courts of their home jurisdiction if local judges are likely to look upon things more favourably.  Such risks may need to be assessed, discussed with the client and factored into the overall case strategy.

Another fundamental element of dispute resolution is the emotional impact of proceedings on the parties. Predicting, noting and understanding the reasons for an opponent's emotional response can equip a lawyer and their client with precious information about the opponents' priorities as well as, for example, where their tolerance for settlement is likely to be. 

Courts

English lawyers are rightly proud of the quality and impartiality of English judges delivering fair, thorough and persuasive judgements. Nevertheless, judges and arbitrators are human beings and bring their own preconceptions and experience to bear. 

In the English adversarial system, the outcome very much depends not only on how fully the case is argued before the judge or arbitrator, but also on how credible the parties, their witnesses, experts and representatives appear.

As much as foreign parties usually afford respect to English judges and arbitrators, they may sometimes inadvertently (and through not understanding the relevant rules) create a less favorable image in the eyes of a judge or arbitrator than they deserve, which can impact on the prospects of success of their case. 

It is critical that clients understand the importance of the rules and protocol involved in communication with the English courts and arbitral tribunals, and how those rules and protocols may differ from their own experience in their home jurisdiction, in order to avoid unnecessarily jeopardising how they are perceived in English proceedings.

Daniel Burbeary is a partner and Irina Buydova is an associate at Cooke, Young & Keidan LLP