December 11, 2012

Are the Parties’ Unconscious Biases Leading the Case Astray?


As litigators, we’ve all fallen into the trap of believing our client’s perspective, only to learn later of conflicting evidence that erodes our client’s case. It may be that our client was experiencing selective perception – a dynamic in which individuals focus on a certain aspect of a situation while unconsciously ignoring other equally important aspects.

Before we assume our client was pulling the wool over our eyes, we shouldn’t rule out the possibility that he honestly believed his perspective was true. Social scientists have found that we often overestimate our ability to perceive and recall events. Here’s a link to a fun one-minute video that may surprise you.

Now, if we learn of conflicting evidence during discovery, we may also find out – to our surprise – that our client may have been well aware of this information from the beginning. Was our client deliberately withholding this information? It may be hard to tell because many people suffer from cognitive dissonance – a related process wherein people ignore information that contradicts their viewpoint so they can continue to believe in the certainty of their perspective.

The earlier we learn that selective attention and cognitive dissonance are affecting our litigation positions, the less we – and especially our clients – will suffer later on. Early mediation is a useful tool to determine whether these psychological forces are at play, and can help the parties understand the value of the case before spending excessive time, money and emotional energy in scorched-earth litigation.

Filed Under: Mediation

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