Cognitive Bias in Mediation: Fundamental Attribution Error

Massachusetts family mediationPeople tend to process information through some of the same filters over and over again. We call these filters “cognitive biases.” They are hardwired into our brains.

One particularly strong bias is called “fundamental attribution error.” When something good happens, we tend to overestimate the role of our own effort and intention. For instance, a store manager might say, “The changes I made helped us make more money last year,” even though it happened at the time the whole industry was expanding. On the other hand, when something bad happens, we are tempted to assign moral blame.  For instance, in a family mediation in which one party has experienced an injury or illness, the other party will often say, “I know she got hurt, but she really could be fine now if she worked harder at it.” In other words, people do have a subconscious tendency to congratulate themselves and blame the alleged victim.

Both sides of the fundamental attribution error coin come up often in business and family mediation. The mediator first has to decide if it is a barrier to resolution, creating significant difficulties on one or both sides, or if he can safely ignore it. If it is a barrier, he has many options.  He can engage in reality testing, although he should read the parties carefully to be ready to address any explosive pushback if emotions run high. He canhold up a mirror to the party most entrenched or float the fairness bubble.  His goal is to see if the parties’ perspective can be shifted so they can get past the issue.

For the parties, fundamental attribution error can be offensive. People do not like listening to boastful language that implicitly or explicitly denigrates their role in positive developments. At the same time, people do not like listening tolanguage thatimplicitly or explicitly blames them, often by laziness, for not escaping externally imposed constraints. As a party, one can spin the language to increase or decrease the other party’s perception of one’s fundamental attribution error to increase or decrease the other party’s annoyance.  Annoyance often stands in the way of resolution, but sometimes, if people are motivated by a desire to overcome the taint, it can be an impetus. The implicit message to which some parties respond is, “Prove to me you are capable.” Parties who are using the mediator to convey messages should be up front about their goals, since mediators sometimes filter out emotional content in order to keep the focus on the elements of resolution.

Fundamental attribution error: acknowledge its presence, then choose to use it or try to bypass it.

Cognitive Bias in Arbitration: Fundamental Attribution Error

People tend to process information through some of the same filters over and over again. We call these filters “cognitive biases.” They are hardwired into our brains.

One of these biases is called “fundamental attribution error.” When something good happens, we tend to overestimate the role of our own effort and intention. For instance, a store manager might say, “The changes I made helped us make more money last year,” even though it happened at the time the whole industry was expanding. On the other hand, when something bad happens, we are tempted to assign blame.  For instance, “I know his job was cut when the company was downsizing, but if he had put more effort in, they would have kept him and let someone else go.” In other words, even though people may think they root for the underdog, they actually have a tendency to congratulate themselves and blame the alleged victim.

Judges gavel on a pile of law booksIn a contested matter, the complainant has been unhappy enough with the outcome of a situation to makea claim.  At some level, the arbitrator must be careful not to have a bias toward blaming the alleged victim or respond to his bias by overcompensating in favor of the alleged victim.  Similarly, he must be careful not to have a bias toward crediting success solely to the effort and general superiority of the party claiming success (although he may need to acknowledge that success in weighing the evidence). He must be conscious of how he is responding at a subconscious level.

The advocate in arbitration can use cognitive biases in her favor by how she spins the story she tells.  For instance, defendant’s counsel can present evidence of the many ways the plaintiff failed to take action to prevent or ameliorate the harm. While the advocate runs the risk of alienating an arbitrator by reiterating evidence too much, she should certainly try to reinforce the arbitrator’s subtle predilection toward assuming fault (and even character flaw).  Likewise, plaintiff’s advocate should consider ways to weaken the other side’s subtle claims of moral superiority. Counsel should plant the seeds of the dark side of a successful defendant’s story, as if defendant were a baseball player who was viewed as a hero because of his prowess on the field until the public learned about his secret steroid use.

While fundamental attribution error comes up more often as an obstacle to mediated resolution, the attentive advocate can also use it to help be persuasive in arbitration.