16 Jul Cognitive Bias in Mediation: Preventing Implicit Cognitive Bias Roadblocks
Lady Justice. Since the 15th century, she has often been depicted wearing a blindfold. The idea that justice should be blind – to power, wealth, identity or other status – and objectively dished out is an aspirational idea.
Unfortunately, bias and prejudice remain part of the human condition. While striving for impartiality, everyone involved in the justice system needs to acknowledge the human capacity to fall short of this goal – both consciously and subconsciously.
In a previous blog post about cognitive biases exhibited during mediation, I discussed how human nature tends to distort our views about ourselves (and the strength of our ideas and arguments) and the subject matter before us (the relative worth of assets and our aversion to perceived losses). These biases can create obstacles to movement during negotiations to reach a settlement.
In this blog post, I explore how cognitive biases can also cause distortions in how we view others – particularly opposing parties at mediation. I explain how acknowledging, accepting and being mindful of a person’s (or our own) potential for bias can help us to tackle unhelpful assumptions and tendencies that may frustrate the goal of a mutually acceptable settlement.
Implicit Cognitive Bias
Canadian author Robertson Davies once wrote: “The eye sees only what the mind is prepared to comprehend.” Our minds work in a way which tries to find some order to the world. We look for similarities and differences – in persons, places or things – to help judge where things fit.
Sometimes, when we’re required to make snap judgments or immediate sense of a new situation, we subconsciously rely on pre-existing opinions we’ve come to hold through past experiences or information we’ve gathered. Unfortunately, this often involves calling upon a stereotype we’ve come to hold. While stereotypes help our minds to process information quickly, they can easily distort our view.
Psychologists have found that when it comes to defining ourselves in relation to the world, people tend to value groups of people similar to themselves (in-groups) and attach negative prejudice to others (outgroups). Sometimes these social groupings are based on intrinsic qualities (age, sex, race/ethnicity, sexuality) and other times they are rather arbitrary (fans of music performers or local sports teams).
Consciously, we may express principles aligned to the ideas of fairness, equality and support the merit of good arguments and factual information irrespective of where they originate. Nevertheless, the power we attach to ingroups and outgroups permeates our thinking at a subconscious level. This can lead to implicit bias that has real consequences.
Researchers at Harvard developed a widely used Implicit Association Test that shows significant positive or negative evaluations for ingroups and outgroups, respectively. Dominant social groups tend to be viewed more positively (stereotype beliefs) and in most cases people identify with and prefer members of their own or a similar social group and express suspicion towards others (automatic prejudices).
What Does This Mean For Mediation?
Mediators themselves are acutely aware of this type of cognitive bias and must consciously examine themselves in order to ensure fairness and impartiality while facilitating negotiations. Are participants, including legal representatives, aware of the potential for bias and how it might influence (and hurt) these discussions?
As I explained in a previous post, implicit cognitive bias can cause people to subconsciously believe their ideas are superior and the prospects of them achieving a positive outcome close to their initial position is more likely than not. Confirmation bias may cause them to seek out opinions which support their views. Moreover, they may have subconscious biases towards valuing their own assets and being averse to losses.
If a member of an out-group is sitting on the other side of the negotiation table, the potential for flexibility and movement may be reduced. Actions based on stereotypical assumptions and prejudice may diminish good will.
How To Prevent Implicit Cognitive Bias Roadblocks
Prior to entering a mediation, it is always helpful to remind yourself and your client that subconscious bias can be a stumbling block to finding a mutually agreeable solution and settlement. Simply acknowledging the possibility of bias in yourself or others encourages us to consciously look for evidence of what might otherwise go unnoticed. This may prompt you and your client to be especially sensitive to how your words may be received and the unintentional consequences if bias seeps in.
One of the worst things to do if you notice bias in another person during mediation is to directly confront the person. That’s almost always a surefire way to get a person’s back up and reduce the likelihood of fostering openness to co-operative movement.
Moreover, subconscious biases and prejudice develop over years. It would be irresponsible to expect that a person could overcome them during the course of a few hours or day of mediation – especially when these discussions can be stressful at the best of times. Research shows our brains tend to fall back onto our most deeply held attitudes during periods of intense stress or pressure.
Instead of attempting the Herculian feat of changing a person’s attitude, aim for the more reasonable goal of removing obstacles to movement and settlement. Here, an effective mediator can be an enormous help. If you suspect an opposing party’s bias may be getting in the way of your mutual desire to avoid court, let the mediator know. A good mediator can draw on a number of approaches to minimize the effect of bias, redirect discussions towards issues instead of people or personalities and find ways to highlight areas of agreement to demonstrate that differences may not be as stark as expected.
Working on Your Biases and Working With Your Mediator
Practicing mindfulness can help you in everyday life and especially during potentially stressful situations such as negotiations. It’s important to acknowledge this kind of practice takes time and effort.
An effective mediator will have a great deal of experience with these concepts. Use this experience to help you and your client cut through the obstacles and roadblocks from subconscious bias that frustrate attempts to find common ground or mutually acceptable ranges that are the basis for a settlement.
ABOUT THE AUTHOR
Jonathan T. Cooper is the taller, younger and non-bow-tied mediator with Cooper Mediation Inc. He mediates primarily, but not exclusively, in the area of personal injury and insurance.
Jon can be reached at email@example.com or at (647) 993-2667.
To schedule a mediation with Jon, visit: https://coopermediation.ca/jonathans-online-calendar/.