A woman tearfully recounts her battle with breast cancer, attributing its cause to the nearby Superfund site. “Don’t tell me the toxic pollution wasn’t the cause. No one else in my family has had cancer and only I live next to such a mess.” Two parties produce well-qualified technical experts, each equipped with reams of data, who dispute the likelihood of the negative effects of a power plant’s increased temperature in discharge to aquatic life. In yet another dispute, one side, after reviewing its alternatives and assessing the costs of continued conflict, reluctantly decides to offer significant concessions as part of a new settlement proposal. The other side regards the olive branch as a Trojan horse: some trickery must be involved!

What do each of the above situations have in common? Likely, all-too-human cognitive biases. A cognitive bias is a mistake in reasoning, evaluating, or another cognitive process that often occurs as a result of sticking to one’s preferences regardless of contrary information. Such biases can be beneficial in daily living because they are efficient, allowing inferences to be drawn and actions to be taken quickly. But, as we mediators know, in situations involving uncertainty, complexity, and conflict – the waters in which mediators swim every day – these mental shortcuts often lead individuals and groups astray, resulting in incomplete, inaccurate, or illogical judgments.

Forms of Cognitive Bias

Mediators and facilitators encounter these and other similar dynamics on a daily basis. A few biases, of the many that arise commonly in conflict situations, include:

  • Anchoring (“If they are starting at $15K, then we must react to and counter that”)
  • Availability bias (“No way am I taking that drug—it gave my friend a blood clot”)
  • Certainty in hindsight (“I remember how he gave me a creepy feeling the first time I met him”)
  • Confirmation bias (“I wouldn’t have seen it if I didn’t believe it”)
  • Endowment effect (“The appraisers are wrong—anyone can see it’s worth much more than that”)
  • Fundamental attribution error (“I made a simple mistake; they know they are being disingenuous”)
  • Overconfidence (“It’s hard to imagine the court not seeing this our way on both liability and damages”)
  • Reactive devaluation (“If those guys proposed it, you know it has to be bad for us”)
  • Self-serving bias (“I am a better-than-average driver; it isn’t my fault that the road was snow-covered”)
  • Sunk cost fallacy (“We have spent too much time and energy on this to think about changing course”)

Implications for Mediator Practice

What is a mediator to do? Mediators employ a standard set of skills and techniques to assist conflicting parties: listening deeply, surfacing interests, reframing, empathizing, summarizing in ways that integrate different perspectives and encourage forward-looking thinking, to name some. While these fundamental tools can at times help mitigate the effects of cognitive bias, they often seem inadequate in complex, contentious situations. These situations call for first identifying what cognitive biases may be affecting a conflict and then looking for creative application of our existing techniques and approaches or, perhaps, the invention of new strategies to address them.

For example, in situations where parties seem to focus on or interpret information differently (possible confirmation bias), a joint fact-finding approach may be helpful. Where parties exhibit heightened mistrust of one another (possible reactive devaluation), it may be useful to normalize a proposal (“in other cases, an approach along these lines succeeded in creating a path forward…”) or see if the proposal can be conveyed by a trusted entity (astute parties have often asked the mediator to be the putative source of a settlement idea). Initial assumptions may need to be re-examined if it is less easy to dismiss the messenger as biased, confused or self-interested. Indeed, what might be most important is who is presenting the proposal rather than what the proposal encompasses.

When parties are suffering from overconfidence and self-serving bias, mediators can encourage clear-eyed thinking about the potential risks and benefits of various options. Approaches can range from the classic “BATNA analysis” and “reality testing” to asking parties to conduct a “pre-mortem” and imagine what might not go as anticipated or hoped. Perspective-taking, where parties are asked to articulate their understanding about what others might be thinking and feeling, may help to reduce the risk of ascribing incorrect motivations (a form of fundamental attribution error) or failing to consider the limitations of memory (certainty in hindsight).

Suggestions for Negotiation and Mediation Training

Providers of negotiation training should consider giving greater attention to the understanding and management of cognitive biases. Interest-based or mutual gains approach negotiation training equips participants with a number of powerful ideas and strategies for conflict resolution but tends to assume more rationality in decision-making than may be realistic. These trainings could be improved by a greater focus on how our minds can lead us astray, particularly in conflict situations, and what responses might be considered in those instances.

Mediation training similarly tends to give little, if any, focus to cognitive bias. A greater curricular emphasis on how mediators might identify and potentially manage these often-unseen factors would help advance the mediation practice. Various forms of bias are also an occupational hazard for mediators. For example, a mediator might be “anchored” by the way parties present and frame issues and thereby miss creative options for resolution. Or mediators who strongly favor settlement outcomes may be susceptible to confirmation bias and assign greater weight to factors favoring agreement over those that might suggest another outcome that is better for one or more parties.

Your Experience?

We at CBI are interested in your thoughts about these issues. What recurring cognitive biases have you seen in conflict situations? What techniques have you found helpful (or not) in addressing these dynamics? Are you aware of effective training for negotiators or mediators that includes significant attention to these issues? How might we construct cognitive bias tests for stakeholders that raise their awareness of their own vulnerabilities? We welcome your insights and further dialogue around these issues. 

Email Doug Thompson with your thoughts.