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Which System Would the Jury Use?

by Phyllis Pollack
December 2015

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

If you have been reading my blogs, you know that I am interested in neuroscience and the notion as discussed by Daniel Kahneman in his book Thinking Fast and Slow that we have two systems of thought : System 1 which we use to get through the day; it is intuitive, fast, emotional, automatic and subconscious and relies on heuristics and cognitive biases to get us through our lives; and System 2, which we use when we REALLY have to think about something; it is slow, deliberate, effortful, logical, conscious, and requires us to use up quite a lot of glucose. (That is why we are so “tired” after a day of thinking and analyzing or other mental activity!)

Recently I conducted a mediation in which I realized that if the matter were tried before a jury, the result would depend on whether the jury as a collective whole was using System 1 or System 2 in determining the verdict. Surprisingly, the parties agreed with my analysis. (The matter has not yet settled and so a jury determination is still a very real possibility.)

The case was a products liability action in which an oven caught fire causing a lot of damage to the home. Generally, to win a products liability action, one must show that there was a defect either in the design or in the manufacture of the part or product at issue. In the case I mediated, Plaintiffs contended that the oven overheated during the self-cleaning process and the thermal circuit breaker did not shut it off when it got above a certain temperature. That is, the fail safe mechanism or automatic shut off did not operate, thereby allowing the oven to overheat and catch fire. However, defendants contend that the thermal circuit breaker was working fine and did not malfunction. The defendants argue there was no “design” or “manufacturing” defect in the thermal circuit breaker and thus no “design” or “manufacturing” defect in the oven. The defendants argue that as there is no design or manufacturing defect, then plaintiff is not able to win on a products liability claim.

In response, plaintiff argued an alternative theory of liability – the consumer expectation test: Ovens should not catch fire. One does not expect to turn on the self-cleaning function of an oven and suddenly have a fire causing partial destruction of a home! Consumers simply do not expect such a result! Surely, something must be wrong with the oven! They should not catch on fire!

Ah! But the defendant argues that to win the case even under this alternative theory (i.e., consumer expectation test) – plaintiff still must show there was an actual design or manufacturing defect. Defendant responded by stating that the fire IS the evidence that there was a defect as ovens should not catch on fire with normal use. There is a very strong inference that the oven was defective by the very fact it caught on fire with normal use. So, plaintiff believes she should win by the mere fact that a fire occurred while defendant argues plaintiff must show more: an actual design or manufacturing defect!

So… what will a jury do? Use its collective System 1 thinking and agree with Plaintiff that ovens should not catch on fire when turned to their self-cleaning function and because this one did, there must have been a defect somewhere within the oven (even though neither side can prove exactly where) making defendants automatically responsible for the loss?

Or, will the jury use its collective System 2 thinking and ask the hard questions… there has to be a “logical” or “rational” reason (that the lawyers and parties are not telling us) behind why the oven caught on fire. There has to be more to this and without more information, we the jury cannot find for the plaintiff.

Who knows which system of thinking a jury might use? In all probability, like the parties, the juries will use both Systems. Some of the jurors will go with their “gut” or intuition (System 1) while others will be analyzing and asking the hard questions (System 2). Which system the jury will ultimately agree on is anyone’s guess. While the matter has not yet settled, hopefully the parties will resolve it so that the jury is never put to this choice.

… Just something to think about.


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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