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In every mediation, there is always some party that predicts the future. Phrases such as “There is no way that we can lose this case,” “most likely we will win,” or “the judge will never rule that way,” are frequently mentioned. The reality, however, is that people are generally very bad at telling the future The reason for this ineptitude is for several reasons.

First, according to a study in the journal of Social Pyschology, we are 30% more accurate at predicting performance for a third party than we are at predicting our own future performance. According to the research, we base predictions about others on hard facts, but brush aside our own failures or shortcomings as aberrations.

Second, Yale psychologists have discovered that when we are in the middle of a “game” we are less likely to predict the performance of the game than when we are hypothetically playing the game. In other words, if we are in the midst of a problem or activity, our impartiality is less than if we were hypothetically thinking about that same activity.

Third, Casino operators count on the next bias which is often called the wishful thinking bias. Researchers have discovered that when there is an equal chance of a good outcome versus a bad outcome, study participants tend to believe that the good outcome will occur despite knowing that the evidence is contrary.

These biases demonstrate one of the powerful tools of mediation. Having an “unbiased” third party help to look at the outcome and evidence. A neutral mediator doesn’t or shouldn’t suffer from these biases; indeed, according to the first study, the mediator — when presented with all the facts — should have a higher likelihood of predicting the future than the parties themselves.

However, the mere fact that a mediator may be unbiased does not mean that the mediator’s views are determinative. They are merely helpful guides and perspectives that you may not otherwise see because you are too entrenched in the game or simply have a case of “wishful thinking.”


By Steven G. Mehta

As a continued discussion of cognitive discussions, I thought I would bring to light the fallacy of fairness.

Fallacy of Fairness.

Most people are hardwired to understand a concept of fairness.  Even as children, we comment that something is or isn’t fair.  There is an obvious feeling of resentment when we percieve something as unfair.  However, some people take that feeling of resentment to an extreme.  They feel resentful because they think they know what is fair, but other people won’t agree with them.   These people get bogged down in the details of what is fair and what is not fair.  In an employment case, they may get bogged down in the unfairness of being an at will employee.  Or they may feel that it is unfair that they were sued.  As our parents tell us, “Life isn’t always fair.”  People who go through life applying a measuring ruler against every situation judging its “fairness” will often feel badly and negative because of it.

The Solution: First, a great degree of empathy is required to address this issue and before you discuss the issue, you need to make sure that they know that you have heard them.  Second, explain the difference between what should happen and what does happen.  Give lots of examples of unfair things happening to good people in the legal context.  In explaining how this unfairness applies to other people, you can create a sense of fairness in that it is not just happening to this one person, but to everyone.

By Steven G. Mehta

If you want to make the right decision, get angry.  Wait, that doesn’t make sense.  Or does it?  A surprising new study suggests that in at least one aspect the angry individual will be the more rational decision maker because they’ll be less prone to the confirmation bias – tendency to seek out information that supports our existing views.

Maia Young and her colleagues researched this issue in several experiments.  The angry individual was found to go against the wisdom of the group and instead “had a mind of his own.”
The participants who’d earlier been made to feel angry were the ones who were more likely to change their position after a debate on a topic.

Young and her team said their results provided an example of anger leading to a cognitive pattern characterised by less bias. ‘Although the hypothesis disconfirming behaviour that anger produces may well be an aggressive act, meant to move or fight against the opposition’s opinion,’ they said, ‘its result is to provide those who feel angry with better information.’

In mediation, this concept may be helpful to the ultimate decision making process.  People are often angry in the mediation.  They vent their feelings early in the mediation process.  That forum to express anger may be part of the reason why they are then open to alternative views after that anger has been expressed.

One commenter stated as follows:

This makes a lot of sense to me. Pretty much every time I’ve shifted in my opinion on a major issue involved at least some degree of anger. Not necessarily PISSED OFF GRRR but at least upset. Certainly there’ve been times when I looked up the opposing argument intending to tear it apart and come out thinking “actually … they might have a point after all”

This research requires more investigation before it can be relied upon for application.

Research Source:

Young, M., Tiedens, L., Jung, H., and Tsai, M. (2011). Mad enough to see the other side: Anger and the search for disconfirming information. Cognition and Emotion, 25 (1), 10-21 DOI:10.1080/02699930903534105

By Steven G. Mehta

How does a person’s self esteem affect his or her ability to make judgments about others?  Well a new study shows that a person is more likely to be biased against another person who is different if they have lower self esteem.

“This is one of the oldest accounts of why people stereotype and have prejudice: It makes us feel better about ourselves,” says Jeffrey Sherman of the University of California, Davis, who wrote the study with Thomas Allen. “When we feel bad about ourselves, we can denigrate other people, and that makes us feel better about ourselves.”

In their study, Sherman and Allen asked participants to take a an impossible test with 12 difficult questions.  No one got more than two items correct. However, half of the group was told that they scored well below average – creating a level of self consciousness and low self esteem.  The others were told their tests would be graded later. All of the participants then completed a testing of their prejudices.    The people who were feeling bad about their test performance showed more evidence of implicit prejudice.  The researchers also discovered that that people who feel bad about themselves show enhanced prejudice because negative associations are activated to a greater degree.

“If the problem was that people were having trouble inhibiting bias, you might try to train people to exert better control,” Sherman says. But his results suggest that’s not the issue. “The issue is that our mind wanders to more negative aspects of other groups. The way around that is to try and think differently about other people. When you feel bad about yourself and catch yourself thinking negatively about other groups, remind yourself, ‘I may be feeling this way because I just failed a test or something.'”

This research has interesting implications for litigation and adr.  First, in jury selection.   It might be helpful if you have a jury that is from a different background than your client to try and investigate issues regarding self worth, self esteem, and recognizing one’s place in the social society.  By doing so, you can attempt to find the persons who may be more prejudiced against your client.

Second, in ADR, it may be possible to try and change a person’s feelings about him or herself.  If a person is potentially biased about how the other side feels or acts, you might attempt to create an environment which is conducive to bolstering a person’s self esteem.  For example, you might compliment (only if true) a decision made during the mediation or actions taken previously by the person.  You could also change the topic to something that the person knows a considerable amount about.  By doing so, that person with self esteem issues may be able to demonstrate his or her expertise – and in turn raise self esteem for the moment.  All of this could be done before asking that person to consider the other side’s actions, response, or feelings.

Research Source:

Association for Psychological Science. “People with low self-esteem show more signs of prejudice.” ScienceDaily 23 February 2011. 24 February 2011 <­/releases/2011/02/110223151945.htm&gt;.

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