Erasmus Law Review

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Issue 1, 2024 Expand all abstracts

Access_open Are Insolvency Practitioners Human? On the Role of Similarity, Outcome and Gender Bias in Insolvency Situations

Keywords similarity bias, outcome bias, gender bias, legal psychology, business valuation
Authors Marc Broekema, Niek Strohmaier, Jan Adriaanse e.a.
AbstractAuthor's information

    This article adopts a psychological lens to investigate whether cognitive biases might obscure insolvency practitioners’ perceptions. Through an experimental study among members of INSOL International (N = 272), we find that insolvency practitioners’ judgments of business valuations and business valuators in an insolvency situation are affected by (1) the degree of perceived similarity with the valuator (i.e. similarity bias) and (2) the outcome of a bankruptcy deal in which a valuation is used (i.e. outcome bias), such that their judgments are more favourable in case of higher perceived similarity and in case of a positive outcome. Furthermore, we find that male insolvency practitioners have more trust in male valuators than in female valuators, suggesting that (3) gender biases play a role as well. These findings shine a light on decision-making in business rescue and bankruptcy cases and the insolvency industry in general. The findings call for further research on cognitive biases in insolvency-related matters including possible implications for policymakers.

Marc Broekema
Marc Broekema is Assistant Professor at the Leiden Law School, Department of Business Studies, University of Leiden, the Netherlands, managing director at financial advisory firm Kroll, and lay judge at the Enterprise Chamber of the Amsterdam Court of Appeal.

Niek Strohmaier
Niek Strohmaier is Assistant Professor at the Leiden Law School, University of Leiden, the Netherlands, and is affiliated with law firm RESOR.

Jan Adriaanse
Jan Adriaanse is Professor at the Leiden Law School, University of Leiden, the Netherlands, and director at financial advisory firm Kroll.

Jean-Pierre van der Rest
Jean-Pierre van der Rest is Professor at the Leiden Law School, University of Leiden, the Netherlands. The article is based on the doctoral research project of Marc Broekema, who successfully defended his dissertation ‘Cognitive Bias in the Judgment of Business Valuations and Valuators’ in April 2020 at Leiden University.

Access_open The Defendant as the Reluctant Player in the Adversarial Setting of Medical Dispute Committees

Keywords medical dispute committees, health care incidents, professionals, healing lawyers, comprehensive law movement, complaints
Authors Rachel I. Dijkstra, Nieke A. Elbers, Antony Pemberton e.a.
AbstractAuthor's information

    Medical dispute committees in the Netherlands were formalised in 2017. They offer hybrid procedures, combining complaints handling with the processing of a potential claim in cases where a complaint could not be resolved at the health care organisation. Recent scholarship has shown the experiences of complainants (patients and families) with dispute committees, but research regarding the roles and experiences of the defendants (usually representatives of health care organisations) is lacking. This research aims to understand how defendants understand and fulfil their professional roles and how this could impact the dispute committee proceedings. This research features an inductive, thematic analysis of in-depth interviews with defendants at medical dispute committees. Researchers conducted interviews with eighteen defendants at dispute committees. Defendants were generally managers and legal counsel at health care organisations. The main results include defendants who preferred problem-solving and who wanted to avoid conflict. Defendants did not have a strong adversarial mindset, but they did highlight their commitment to defend the health care professional and institution. Some respondents felt forced into a defensive position, which they reluctantly fulfilled. Our main conclusion is that dispute committee proceedings can demand defendants to take on an adversarial role, despite the best intentions of the legislator to create a less legal procedure and a problem-solving mindset among the defendants. The expectations of defendants and patients might connect better to a problem-solving, healing role of defendants and a less formal set-up.

Rachel I. Dijkstra
Rachel Dijkstra, LL.M., PhD Candidate, Tilburg Law School, Tilburg University and Lecturer at Utrecht University.

Nieke A. Elbers
Nieke A. Elbers, PhD, Senior Researcher, Netherlands Institute for the Study of Crime and Law Enforcement and VU University Amsterdam.

Antony Pemberton
Antony Pemberton, Professor, Netherlands Institute for the Study of Crime and Law Enforcement and Leuven Institute of Criminology, KU Leuven.

Roland D. Friele
Roland D. Friele, Professor, Tranzo Scientific Center for Care and Wellbeing, Tilburg University and Netherlands Institute for Health Services Research (NIVEL), Utrecht.

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