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Why You Should Avoid Trial and Mediate Instead!

by Phyllis Pollack
September 2017

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack
The semester has just started at USC Gould School of Law where I am teaching ADR Ethics. One of our recent classes focused on cognitive biases. After I pointed out that we all have them, and it is unavoidable, a student asked “What about judges?” Yes- they have them too, and unfortunately, most are not even aware that they have them.

A recent study noted in the Harvard Program on Negotiation blog ( Cognitive Biases in Negotiation and Conflict Resolution- Common Negotiation Mistakes, August 19, 2017) highlights this sad fact. Research indicates that judges are prone to one or more of three types of error and/or cognitive biases: attitudinal, informational and cognitive. In short, judges (whether appointed or elected) are capable of misjudging. (Id.)

Legal scholars- Robert Carp and C.K. Rowland- assessed the impact of the blinders that judges wear unknowingly. Reviewing more than 45,000 district court rulings issued between 1933 and 1987, they found that “…Democratic appointees ruled in the liberal direction 48% of the time, and Republican appointees rules in the liberal direction 39% of the time.” (Id.)

Comparing the appointees with the President who appointed them, they found that “…Johnson and Carter appointees reached liberal decisions in 52% and 53% of their respective cases, and Reagan and George H. W. Bush appointees reached liberal decisions in only 36% and 33% of their respective cases.” (Id.)

Thus, while the judge sitting on your case will deny it, she brings her attitudinal blinders to the bench, and thus, her underlying ideology (with the concomitment biases) along with it.

A recent post in LiveScience makes this point. In Even Atheists Judge Atheists by Stephanie Pappas (August 8, 2017), Ms. Pappas reports on research indicating that “…. people who don’t believe in God judge other nonbelievers as less moral than religious types…” (Id.) 

In one experiment, the researchers relied on the “conjunction fallacy” which is a cognitive bias that creates the tendency in all of us “… to think that specific situations are more likely than general ones.” (Id.) Using 3,256 participants from 13 different countries, the researchers described a man who tortured animals as a child and murdered five homeless people as an adult. They asked half of the participants whether this killer was more likely to be a teacher or a teacher who believed in God. To the other half, they asked whether this killer was more likely to be a teacher or a teacher who is a non-believer.

The results showed how we all make snap judgments:

Logically, “a teacher” is always the correct answer, because it’s the less specific choice and thus more likely to be applicable. But people tend to make snap judgments, such that when the additional information meshes with their biases, they pick the more specific choice.

The specific choice that resonated with a description of a serial killer turned out to be “nonbeliever.” Overall, people were nearly twice as likely to make the error of choosing the more specific option when that option described an atheist. Fifty-eight percent of the people who chose either a “teacher” or a “teacher and nonbeliever” said the serial killer was a nonbeliever teacher, compared with only 30 percent who chose “teacher and believer” instead of “teacher” alone. (Id.)

The researchers used other scenarios and reached the same results. Overall, they concluded:

Participants intuitively assume that the perpetrators of immoral acts are probably atheists, “the researchers wrote.” These effects appeared across religiously diverse societies, including countries with Buddhist, Christian, Hindu, Muslim and nonreligious majorities. (Id.)

What this leads me to believe, (and I admit I am biased!) is that it is better for people to resolve their own disputes through mediation, than to have a third party- a judge- decide the matter for them knowing that the judge is bringing her own attitudes, beliefs and biases into her decision making without even realizing it.

…. Just something to think about. 

Biography


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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