PGP Mediation Blog by Phyllis G. Pollack
I learned a new term recently: noise. Not “noise” as in a room full of people talking loudly, but “noise” as opposed to “bias”. Whereas “bias” is defined as errors in judgement, “noise” is defined as “the random errors that create decision risk and uncertainty.” ( Noise Versus Bias- We Focus on the Biases But it the Noise that Hurts Us by Mark Rzepczynski, May 30, 2018). As explained by Daniel Kahneman, Olivier Sibony and Cass R. Sunstein, “A bias is any predictable error that inclines your judgment in a particular direction”. That is, given the same situation, we will make the same judgment or reach the same conclusion over and over again. In contrast, “noise” is “unwanted variability in judgments” meaning given the same situation over and over again, we will come out with a different conclusion each time even though the “facts” are the same or nearly identical.
To explain the difference between “bias” and “noise” Kahneman, Sibony and Sunstein use the bathroom scale as an example:
To see the difference between bias and noise, consider your bathroom scale. If on average the readings it gives are too high (or too low), the scale is biased. If it shows different readings when you step on it several times in quick succession, the scale is noisy. (Cheap scales are likely to be both biased and noisy.) While bias is the average of errors, noise is their variability. (Kahneman et. al.)
Unfortunately, this “noise” factor shows up in real life- in the courtroom:
Although it is often ignored, noise is a large source of malfunction in society. In a 1981 study, for example, 208 federal judges were asked to determine the appropriate sentences for the same 16 cases. The cases were described by the characteristics of the offense (robbery or fraud, violent or not) and of the defendant (young or old, repeat, or first-time offender, accomplice, or principal). You might have expected judges to agree closely about such vignettes, which were stripped of distracting details and contained only relevant information.
But the judges did not agree. The average difference between the sentences that two randomly chosen judges gave for the same crime was more than 3.5 years. Considering that the mean sentence was seven years, that was a disconcerting amount of noise. (Id.)
In their book, Noise published on May 18, 2021, Kahneman, Sibony and Sunstein give many other examples of how several people can view the exact same information and come to a different conclusion, be they insurance adjusters, doctors, employers interviewing job applicants, or psychiatrists.
While I have not yet read the book, I intend to do so because “noise” has always concerned me in terms of parties going to trial and placing their fates into the hands of a judge and/or jury. This concept of “noise” reinforces the notion that judges/juries are fallible. Put the same case before several different juries, and one will- in all probability-come out with a different result aka “noise” each time.
Which is why I say, “mediate – not litigate”. You will avoid the “noise”!
… Just something to think about.