As we have discussed here in this space since our first column in 2007, https://nyfamilymediation.com/news/a-mediators-role-as-a-neutral-facilitator/ neutrality is a form of deep connection between the mediator and the parties to conflict. It is the primary pillar of mediation. Neutral as to outcome and impartial in helping all sides to the conflict find mutually agreeable solutions, the mediator advocates for informed, autonomous decision-making and full disclosure. But, decidedly, the mediator does not seek specific outcomes.
The mediator brings neutrality to bear by supporting each party participating in a discussion of values, goals and interests. Ideally, this takes place with reference to the law and to the parties’ particular set of circumstances. That means the details of a settlement may be uniquely tailored to the specific facts of the parties’ conflict. For example, we often see parties in a divorce case decide to take into account the history of their relationship, pre-marriage. In mediation this may be a critical factor in determining equitable distribution, though the law draws a distinct line at the date of marriage.
An important component of cultivating understanding of the parties’ perspectives: the mediator must be aware of the biases that influence parties’ behavior in the face of conflict. The biases, while very much intrinsic to the negotiations, can be substantial roadblocks in the ability to discuss and evaluate the issue at hand. All mediations are goal-oriented and also are driven by strong emotions. The emotions and the history among the parties intensifies how these biases may manifest in the process—even where parties are motivated to reach a fair and decent solution.
Following is a short list of cognitive biases to which mediators should be alert to. When a mediator observes a bias, there are several tools to address these—among them transparently reflecting, acknowledging and normalizing that each one’s experience of the issue at hand is informed by many factors. These varying perspectives may not be fully resolved. This is the paradox of the work in mediation: only when each party’s perspective and the parties’ dynamic has been fully understood by all, might the parties be open to prioritizing, accepting a less than ideal resolution, and conceding some of what the other party needs in order to move forward.
- Omission bias. A host of studies show that people view the commission of an action that causes harm to be more grievous than a passive inaction that fails to prevent the equivalent harm. This manifests in the blame and anger we often see in mediation. Consider the spouse who has risked marital money in a high risk/high return business venture. The actual loss of marital monies will likely be regarded with a high level of blame and acrimony. In contrast, foregoing an investment opportunity that, with hindsight, would have been profitable, is less likely precipitate judgment and disdain. The omission is more easily accepted than the commission, even one made with the best of intentions and even if the couple is worse off for the missed opportunity than for the bungled investment.
- Loss aversion. In their famous collaborative work, behavioral economists and Nobel Laureate Daniel Kahneman and the late Amos Tversky, have demonstrated in their work that human beings prefer avoiding loss, even at the expense of acquiring gain. Bearing this in mind during mediations, neutral mediators need to understand that parties likely view the prospect of losing $5,000 in the sale of an asset today to be a worse outcome than holding the asset over time, even when facing the likelihood that it will cost more than $5,000 to maintain until sale. Put simply, losing $1 hurts more than the enjoyment of gaining $1. And often avoiding loss is a greater source of motivation than the prospect of gain. This concept plays out during negotiations, when an initial offer on the table becomes, upon reality testing, untenable, it is very difficult to shift to something less. This is true even when the subsequent lower offer is a generous one in excess of a likely legal result and even if it meets the needs of both parties. For mediators, sensitivity to loss aversion means working to re-frame the offers, exploring the positive aspects of proposals and softening the focus on the loss. This broader context should help parties make a thoughtful decision within their risk threshold.
- Anchoring bias. An initial (often extreme) offer of settlement can mar parties’ trust and perception of the other’s good faith. At our first meeting with parties, we often inquire whether they believe they can come to agreement. In other words, upon hearing an offer from the other, is the instant reaction a rejection of the offer, termed “reactive devaluation,” believing the offer to be a posture, or, worse, undermining that they are negotiating in good faith out of court. Again, the mediator would do well to reality test the offers on the table—what works and what does not. The process is not about optimizing one’s best outcomes, but about arriving at a mutually acceptable result. If “best” around a given issue is a priority, compromise on another issue is likely in order to come to “yes.”
- Fixed Pie bias. Parties in the midst of negotiations who are deeply entrenched in positions, negative emotions, and their personal history, often are unable to see a way forward to a mutually agreeable solution. Decisions and outcomes feel like an exaggerated and binarily, win/lose proposition. This rigidity is very common in mediation. We see this in cases where one parent is seeking to relocate with the children. While admittedly quite challenging, by exploring each of their roles, schedules and hopes as parents, we are often able to shepherd them toward creative options. These may be less than ideal, and likely involve compromises beyond both parties’ respective comfort zones. However, with determination we have seen many parties find their way toward a workable schedule that resonates for both. Certainly, the pie is not fixed, even if it is not divided 50-50. Here, we return to the exploration of a party’s motivation to be in the process, to work together to brainstorm and evaluate possible options to reach their goals in the optimal way given the reality they face. Additional strategies may entail relying on outside experts such as a child development expert or a financial neutral.
- Fundamental Attribution Error. A well-known phrase asserts that “We judge ourselves by our intentions and we judge others by their actions.” This rings particularly true in the context of conflict, when we naturally attribute negative characteristics to our counterpart and work with incomplete information—that is, not fully understanding the other’s circumstances and decision-making. In contrast, in a trusting, collegial or loving environment, we assume good intentions and offer the benefit of the doubt. The ability to experience the other’s actions with a generous spirit is counter-intuitive when hostilities set the framework. Where conflict—and mistrust and miscommunication—is high, there exists the impulse to ascribe bad motivations or insensitivity. The communication in mediation, therefore, should focus on exploring intentions and meaning that underlie actions and positions.
- Confirmation bias. Perhaps the most common pitfall for lawyers, this bias can be described as a cognitive pre-disposition to understand information in a light that reinforces a particular result or supports a particular hypothesis or goal. This happens at the expense of considering the strengths of the other party’s case and the weaknesses of one’s own. As such, parties to mediation garner their “evidence” (in spite of our regular reassurance that we are NOT judges) to “argue” their side of the given issue. The mediator’s role is to shift the dynamic away from binary, proof-based presentations to a comprehensive examination of a range of options and an in-depth consideration of what is workable, given the reality, values and goals of the parties. In other words, “evidence” is viewed more expansively, opening up multiple possibilities.
In mediation, asking a party to the conflict to step into the other’s shoes is often too big of a leap. There is a process in mediation to achieve perspective taking; but it takes place via another route. As mediators, we offer this brief summary of biases to keep in mind as you work with clients. As you observe and listen while parties are negotiating, you may recognize these patterns emerging. Identifying them as a neutral listener provides a supplementary component to understanding what is happening inside of each party. It will be up to your own judgment whether to make explicit this knowledge. Regardless, you are armed with an added layer of information and understanding to connect with their experience. It is from this vantage point that you may work with them to broaden context and options for resolution.
Abby Tolchinsky and Ellie Wertheim are partners at Family Mediation.