“Please don’t tell me your bottom line,” I say to attorneys who are new to my mediation practice.
It’s rare to be asked “why.” Recently, however, an attorney told me that one of my ADR colleagues always commences mediations by expressly asking for her bottom line.
“It’s just like trial,” I said, “or taking depositions, both of which I teach for the National Institute of Trial Advocacy.
It drives the new lawyer students a little crazy to get conflicting advice from the seasoned litigators and trial lawyers who critique their work. But really, it’s their first lesson in rubber-hitting-the-road legal practice. At the end of the day, whatever works best for them is the correct way of doing it.”
That said, I went on to explain why I don’t want to know the parties’ bottom lines.
“Because it will influence me whether I think it will or not.”
As Diane Levin notes in her recent post think you’re neutral? Bias hard to detect in ourselves, because neutrality is the foundation of our practice, it behooves us to recognize our biases.
More importantly, it’s best for us to remember that we won’t be able to identify those biases that are most deeply ingrained in us.
Here are two of Diane’s links to greater coverage of this topic:
From The Situationist: “I’m Objective, You’re Biased“, which looks at “bias blind spots”–the extent to which many of us readily spot bias in others while remaining blind to our own.
And from ScientificAmerican.com,”Not-so-deliberate: The decisive power of what you don’t know you know“, which looks at the ways in which “even seemingly rational, straightforward, conscious decisions about arbitrary matters can easily be biased by inputs coming in below our radar of awareness.”