By Dr. Ken Broda-Bahm:
Most civil cases these days will end, not in a courtroom, but at a settlement table. Many will do so after just the right amount of time and resources invested during discovery to discover the case's true worth. But for many other cases, that investment of time and resources won't be ideal, and attorneys and especially clients will find themselves wondering, "Why couldn't we have just gotten that same result three months ago? Or two years ago?" Sometimes there are good reasons for that: pending discovery and expert evaluations, motions not yet resolved by the court, etcetera. But sometimes the reason is that for too long, the other side was blinded, unrealistic, and stubborn...or you were.
Cognitive bias is not just a factor in jury persuasion, it is also a factor in mediation and settlement. Some very well documented habits of thinking cause us to persist in an overly favorable view of our chances or an overly pessimistic view of theirs. An article in the current issue of the Cardozo Journal of Conflict Resolution (Munsinger & Philbin, 2017) is entitled "Why Can't They Settle? The Psychology of Relational Disputes," and offers a useful overview of some of the problems caused when we bring those habits of thinking to mediation. Those wanting to expand their understanding of the mediation dynamic should read the article in full. The authors' audience is mediators, and the article offers advice on how they should handle the sources of bias carried by the parties. In this post, however, I am going to borrow from their list of biases, but focusing on how advocates can avoid them on their own side, or address them when they seem to be coming from the other side.