Stay up to date on everything mediation!

Subscribe to our free newsletter,
"This Week in Mediation"

Sign Up Now

Already subscribed No subscription today
<xTITLE>In the Eye of the Beholder: Using Perceptual Errors to Resolve Employment Disputes</xTITLE>

In the Eye of the Beholder: Using Perceptual Errors to Resolve Employment Disputes

by Melissa Janis
November 2002

This article was first published in the Dispute Resolution Journal,(August/October 2001) . Republished online with permission.

In my undergraduate days, I was a lab assistant for a cognitive psychology class. Each week, I taught about a different aspect of perception, and conveyed the same message: our experiences and reality are not equal. It was fascinating to demonstrate that color isn’t real, that your experience of color is based on your perception of light rays bouncing off the surface of an object. Sound isn’t real either; your experience of sound is based on your perception of vibrations (so if you were wondering, if no one is in the woods to hear a tree fall, it does not make a sound, only vibrations). Your perception of the world differs from mine, and neither is reality. The possibility for two individuals to experience the same event differently is frequently acknowledged in employment mediation. The phrases 'from my perspective' and 'from your perspective' are invoked by counsel to respectfully recognize another’s position and preface one’s own.

Mediators use them to validate feelings and to encourage the parties to move off positions. Although the existence of multiple perspectives is routinely accepted in the employment mediation context, exploring the reasons for their existence is not. In resolving employment disputes, participants often look to the 'merits,' and accordingly, the reasons underlying differences in perception are regarded as irrelevant. Both counsel and the mediator typically fear igniting emotions and tend to view employment cases as statutory concerns. These preoccupations keep employment mediation on a legalistic path, which differs significantly from mediation in other contexts.

By and large, employment mediations are conducted like a settlement conference: the emphasis is on evaluating the strengths and weaknesses of each case and speculating about the likely outcome of litigation.

Indeed, in the employment mediation survey discussed by Robert Lewis in the Journal of Alternative Dispute Resolution in Employment, every employment attorney surveyed preferred a mediator who "forcefully and vigorously reviews with each party, in confidence, the mediator’s opinion of the likely outcome of the case."1 Movement toward settlement is achieved by evaluating each side’s weaknesses combined with the time and costs associated with future litigation and then comparing this 'package' to an outcome in the present.

In contrast, mediators who focus on resolving the conflict rather than settling the dispute can achieve both of these goals. Like the ubiquitous onion metaphor, we peel back the layers of the dispute to identify the root causes of the conflict. Often, the center of that onion contains a perceptual error.

As humans, we constantly perceive data and draw conclusions in order to explain our own behavior and that of others, and make errors in the process. A conflict may be created and then exacerbated by these misperceptions as each side becomes entrenched in its own interpretation of reality.

For example, when an employer’s affirmative defense is poor performance, both parties formulate their perception of the employee’s performance and attach reasons to the adverse action. Where the employee sees discrimination, the employer sees legal justification. The same event is perceived differently.

In discrimination claims, the parties typically disagree about the quality of employee performance. When performance appraisals are based upon subjective evaluations, perception is involved. The degree to which performance appraisals are ambiguous, are not provided to the employee in a timely manner, or are nonexistent heighten the possibility that a perceptual error has played a role in the conflict. By digging deeper in mediation, it is possible to discover a misperception at the source of the conflict that can lead to a quick, highly satisfying and durable solution.

Types of Perceptual Errors

There are several types of perceptual errors that contribute to interpersonal conflict. This article addresses two major errors I have identified in mediation: the fundamental attribution error, and the false consensus bias.

It is important to note that perceptual errors can occur alone or in combination, simultaneously or alternatively, necessitating special attention to the dynamics of the situation on the part of the mediator.2

Fundamental Attribution Error

We frequently make errors in judgment based on our perceptions. This isn’t due to poor judgment or bad decision-making; perceptions and the resulting misperceptions are formed by an inherently faulty process.

Back in 1958, Fritz Heider postulated that in order to have a sense of control in our lives, we routinely explain our behavior and that of others. "Once we have determined the cause of some event, we can predict the occurrence of that event. In this way, life becomes controllable." 3

Our explanations fall into two categories:
(1) internal (disposition) attributions, in which the behavior is deemed to be caused by the individual’s characteristics; and,
(2) external (situational) attributions, in which the behavior is due to something outside of the person’s control. Heider coined the term "fundamental attribution error" to describe the tendency for people to attribute another person’s mistakes to internal characteristics, but their own mistakes to external factors.4

Lateness is a classic example of the fundamental attribution error. Another person’s lateness will be attributed to internal characteristics, such as being inconsiderate. But when you arrive late for an appointment, you are likely to explain your lateness in terms of some external factor such as traffic. "Due to the fundamental attribution error, there is a tendency to attribute blame to the other’s personality traits while justifying one’s own behaviors as due to situational factors, resulting in an unhealthy win-lose approach."5

False Consensus Bias

"False consensus bias refers to the assumption that one’s lifestyle, behaviors, and attitudes are the yardsticks of normality. Conversations tend to begin with ‘she should do this and do that.’"6 Our judgments about another’s behavior in terms of our own standards and assumptions that those standards are universally held interfere with accepting alternative perspectives. When we assume that ours is the right way, the other can only be wrong.

In a recent mediation, one party’s efforts to prevent the circulation of a damaging memo were considered insufficient by the other. Even though she had advised the author of the memo that it was inappropriate and unnecessary, the other party held her responsible for the memo because she had not used the more forceful words he would have chosen. As long as he held her actions to his universal standards, he could not get past his conclusion that she had masterminded the event to hurt him.

Mediation Techniques

While focusing on perceptual errors can be a powerful and effective mediation tool, little has been written about the effect of perceptual errors in mediation and techniques to overcome them. In their article on this topic, John Ng and Sophia Ang express their concern for the dearth of systemic empirical research and set forth a solid foundation for discussion based on their experiences and observations.7

Several of the techniques they suggest are standard fare for mediators: what is instructive here is framing them as a means to correcting perceptual errors. In this section, I will recount their suggested techniques and offer additional ones with specific examples from my mediation practice.

Managing Fundamental Attribution Error

According to Ng and Ang, "maintaining impartiality is the key for the mediator to avoid becoming stuck if the parties fix blame on each other while justifying their own behaviors." They suggest that mediators maintain impartiality in three ways:
being like teflon (reframing negative comments to neutral ones);
focusing on common interests; and,
acknowledging feelings and interests. 8

Another technique can be successful in managing the fundamental attribution error: asking the parties to switch seats and speak on each other’s behalf. "Stepping into each other’s shoes" invites parties to change their conclusions not through reason but through cognitive dissonance.

The theory of cognitive dissonance holds that people cannot simultaneously maintain two mutually exclusive beliefs. If our beliefs are in conflict, then we experience a discomfort that moves us either to change our beliefs or alter the reality to which the beliefs refer. In other words, each of us requires a consistency in our own beliefs; when our beliefs are not consistent, we are moved to rectify the inconsistency.9

In mediation, giving the parties the opportunity to "be each other" shifts their blame away from character and toward situational factors. As this technique corrects the fundamental attribution error, it creates cognitive dissonance as the parties validate each other’s perspectives. The parties’ need to reconcile their newly disparate beliefs creates movement toward resolution.

It is also possible to change the parties’ attributions about their own behavior, from situational to dispositional. In addition to the movement gained by creating cognitive dissonance, the parties are encouraged to take some responsibility for their own roles in the conflict.

One possibility to consider is the use of videotape within mediation. In her April 28, 2001, presentation at the ABA Dispute Resolution Section conference in Washington, D.C., Gay Gellhorn showed videotapes of students conducting interviews. She said that videotaping students was the most effective way of getting them to accept constructive criticism. Until they observed their own behavior, the students were unable to take responsibility for their poor performance. Viewing their own behavior enabled the students to observe themselves as they would view others; watching the video lessened the fundamental attribution error by changing their perspective of their own performance from actor (with a tendency to attribute one’s own behavior to the external situation) to observer (with a tendency to attribute others’ behavior to internal characteristics).

Empirical evidence supports my hypothesis. Storms (1973) found that when people watched themselves interact on videotape, they tended to change their attributions about their own behavior from situational to dispositional.10 Videotape affords a unique opportunity for parties to consider their own contributions to a conflict. In the 'right' scenario, videotaping the parties could be a valuable mediation tool.

Managing False Consensus Bias

Since what is considered normal is based on one’s own experience, Ng and Ang propose that the mediator be an 'angel of reality' to overcome the perception of universally accepted standards for behavior.

Reality checks expand a party’s range of normality. Secondly, stating that "responsiveness to perspectives is a precondition for progress," they emphasize the need to ensure that the parties have an equal opportunity to express their perspectives and respond to the other party’s perspectives, and to paraphrase and summarize the parties’ perspectives.

The authors suggest that mediators float possibilities with examples of how similar situations have been resolved. "Floating possibilities means generating options without coercion or forcing. The solutions are suggestions."11 Taking the notion of floating possibilities one step further, mediators can offer alternative explanations for behavior. When one party’s judgment of the other rests on a violation of some universal standard, mediators can float other possible explanations to open the door to other perspectives.

This may be accomplished directly, or through the use of an engaging story related by the mediator. The advantage of a story is its distance from the conflict; because it’s about someone else, the parties are able to relax and hear in the story a message that challenges their assumptions about normality.

A related technique is using the mediator as evidence of false consensus. After establishing a great deal of trust and goodwill, it is possible for the mediator to illustrate how the yardstick of normality fails to measure up.

A story containing a minor self-disclosure, revealing something about the mediator that refutes the party’s universal standard, can be highly effective in creating the cognitive dissonance necessary for the party to modify beliefs. The mediator can neutralize the false consensus bias by demonstrating its inapplicability to the neutral.

Identifying the Perceptual Error

After diagnosing the type(s) of perceptual errors that are occurring, the hunt is on for the actual misperception. One of the most useful tools I’ve encountered is a shorthand for connecting feelings to needs. Simply put: if the party is angry, it’s about respect; if the party is sad, it’s about belonging; if the party is fearful, it’s about safety. Selecting the respect, belonging, or safety path, and asking each party questions about how they are affected by the situation will provide important clues. Listen for repeated phrases, especially ones both parties use. Follow the energy. Identify what produces more activity, passion, or participation in the discussion. Note changes in body language.

Listen for the word "should."

The following examples are mediations I conducted as a contractor for the EEOC. In both cases, the employers cited poor performance in response to the charges of discrimination. Both cases were settled by addressing perceptual errors.

Fast Food Restaurant Case

In the 'fast food' case, the employee was angry that she was fired despite her hard work in a difficult job situation. She was terminated after 19 years of service that included being the cashier when the restaurant was robbed. She was convinced that her employer discriminated against her due to her ethnic background.

The employer maintained that the employee was not productive and presented performance appraisals bearing deficient ratings. Clearly, the progressive discipline followed by the employer was sufficient evidence to refute discrimination charges. Equally clear was that a mediation focused on the merits would have produced a winner and a loser. By searching for a perceptual error, the result was a win-win. The clue surfaced when the employee characterized the current work environment as deplorable and the employer showed emotion for the first time. The employer, proud of the human resources initiative he had implemented, believed he had been successful in improving the workplace culture, and expressed anger when it was depicted as unchanged.

This revealed two clues. First, the energy around the subject of the new program was significant. Secondly, the parties’ anger suggested that respect was an issue for both of them.

The employee attributed her poor performance to unfavorable and unchanged working conditions (situation) and the employer attributed poor performance to an inability to learn the new ways of doing her job (individual characteristics). Since the conflict was so entrenched in situation vs. individual characteristics, I saw an opening to address the fundamental attribution error. By asking the parties to step into each other’s shoes, I helped them reframe the alleged poor performance as lack of fit in the new environment and to value the good performance demonstrated in the old environment at the same time.

Feeling respected and appreciated for a job well done enabled the employee to accept the cause for termination.

The employer took some responsibility for the employee’s inability to succeed in the new culture, which motivated him to make various offers of assistance and career counseling that he might not otherwise have offered, and allowed him to feel respected as a manager.

Bridal Shop Case

In this case, a part-time employee charged age discrimination. In fact, the manager called her at home and told her not to return to work saying "we are retiring you."

Like the fast food case, she was a long-term employee who felt she had worked hard. However, in contrast to the previous case, it was generally agreed that the employee was one of their top performers and performance appraisals were lacking.

The employer’s position was that even though the employee was a terrific salesperson, she was often incredibly rude to customers, jeopardized vendor relationships, and failed to comply with management directives. Management had decided they would "retire her" because direct methods of communication had been unsuccessful and they saw this as a way to avoid further unpleasantness.

There were two key clues to the perceptual error in this case. First, all five of the employer representatives were extremely angry and the employee was very sad, suggesting respect and belonging needs, respectfully. Then, both parties used the same phrase in caucus: the employee "didn’t need the money." A false consensus bias was operating for each of the parties.

The employer’s representatives believed that people who don’t need money behave as they please. The employee believed that people who work but don’t need the money are dedicated employees who demonstrate tremendous initiative due to their love for the job.

I addressed the false consensus bias in caucus with each party. With management, I inquired about their counsel’s pro bono work (with his prior consent). Acknowledging that he approaches his work with the same dedication in the absence of compensation challenged their universal standard and created cognitive dissonance. Since they were in a situation that necessitated confidence in counsel, it was critical that they continue to regard him as competent. They could not maintain their belief and regard their attorney as competent and unpaid at the same time. Reconciling these mutually exclusive concepts made them receptive to other reasons for the employee’s undesirable behavior. Because these alternative explanations did not entail disrespect for management, their anger subsided and they felt sympathy for the employee instead.

As for the employee, "not needing the money" was integral in explaining her behavior in the workplace to others and to herself. She attributed her considerable effort, including ignoring management directives, to her devotion to the job. She harbored a belief that people who are not dependent on their salaries are superior workers who identify and act upon opportunities to prevent management mistakes.

When her universal standard was challenged through the use of a story about a person who worked to meet belonging needs instead of money (remember that this employee had expressed sadness), she was able to accept that people work in exchange for something they need, whether it be money or something else. Once she realized that working in the bridal shop met her need to belong somewhere, to be a part of a group, the employee experienced cognitive dissonance. She could not simultaneously acknowledge that she benefited by working and conceive of herself as a superior employee who worked without regard to what she received. This cognitive dissonance enabled her to be receptive to the employer’s perspective, and she ultimately understood how her behavior had been disruptive in the workplace.

Addressing the false consensus biases of the parties eliminated the misperception at the root of the conflict. As a result, they were able to quickly arrive at an integrative solution that the parties and their representatives deemed to be highly satisfactory in terms of both monetary and emotional outcomes.

At the Mediation Table

In addition to the attributions the parties make about the behavior that caused the conflict in the first place, there is a preponderance of attributional activity occurring in the mediation room itself. Parties and counsel attach meaning to their own behavior and to the behavior of those around them, and make perceptual errors in the process.

In a series of experiments, Morris, Larrick, and Su (1999) found that negotiators systematically misperceive their counterparts by interpreting their behavior in terms of character traits instead of situational determinants. "Although basic negotiation behavior is highly determined by bargaining positions, negotiators primarily interpret their counterpart’s behavior in terms of the counterpart’s personality, such as his or her level of cooperativeness or agreeableness."12 Finally, mediators make attributions about everyone else in the room as well. In our efforts to stay neutral, we must manage attributions of our own.

Conclusion

The fundamental attribution error and the false consensus bias are two types of perceptual errors that lead to misperceptions and ultimately conflict. Without understanding the misperception upon which a conflict is based, it is possible for an employment mediator to resolve the dispute but not the conflict, or to fail entirely. When we invest time and effort to explore the underlying reasons for each perspective, a perceptual error may be discovered that can change the course of the conflict and the dispute.

It is my hope that this article will inspire researchers to explore and practitioners to reflect upon and write about their own techniques to reach the center of the onion. May all the onions be peeled and all our toolboxes be full. .

ENDNOTES

1 Robert Lewis, "Staying Out of the Courtroom by Implementing ADR Procedures," The Journal of Alternative Dispute Resolution in Employment, vol. 2, no. 4, 32-43 (2000).

2 John Ng and Sophia Ang, "Attribution Bias: Challenges, Issues, and Strategies for Mediation," Mediation Quarterly, vol. 16, no. 4 (1999).

3 Anthony G. Munton, et. al. Attributions in Action: A Practical Approach to Coding Qualitative Data. New York: John Wiley & Sons (1999).

4 Fritz Heider, "Social Perception and Phenomenal Causality," Psychological Review, vol. 51, 358-374 (1958).

5 John Ng and Sophia Ang, "Attribution Bias: Challenges, Issues, and Strategies for Mediation," Mediation Quarterly, vol. 16, no. 4 (1999).

6 Id.

7 Id.

8 Id.

9 Deutsch, M. The Resolution of Conflict, Constructive Processes. New Haven: Yale University Press (1973).

10 M.D. Storms, "Videotape and the Attribution Process: Reversing Actors and Observers Points of View," Journal of Personality and Social Psychology, vol. 27, 165-175 (1973).

11 Supra, note 2.

12 M.W. Morris, R.P. Larrick, and S.K. Su, "Misperceiving Negotiation Counterparts: When Situationally Determined Bargaining Behaviors Are Attributed to Personality Traits," Journal of Personality and Social Psychology, vol. 17, no 1, 52-67 (1999).

Biography


Melissa Janis is president of Dovetail Solutions, LLC., a company specializing in managing workplace conflict. She provides mediation, conflict coaching, training, ADR systems design, and organization development consulting services.

Email Author
Additional articles by Melissa Janis

Comments