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A key requirement before any settlement, and especially an early resolution, is for the settlement process to satisfy the psychological needs of the decision-makers as soon as possible. These needs affect what parties are willing to accept or commit to including money. A key role of the mediator is to diagnose those needs before the start of negotiations and to recommend a settlement process which treats that diagnosis. Too many mediators do not spend enough time during pre-mediation to anticipate these issues before the start of negotiations. Also too many mediators are not trained to understand how human psychological factors, including biases and heuristics, effect decisions to settle disputes.
The following pages are useful resources to help educate mediators and negotiators about these issues.
A good description of confirmation bias.
This is a tale from an ancient piece of Chinese literature – Lu’s Commentaries of History – compiled in 239 B.C. by Lu Buwei, the Prime Minister of the state of Qin.
“There was once a villager who had lost his hatchet. Thinking it was stolen by his neighbour’s son, Wang, he began observing Wang’s demeanour. He noticed Wang behaving incredibly suspiciously, his facial expressions and the way he conducted himself suggested that he was the culprit. The villager, however, did not have any proof and so was unable to confront Wang. Later, as he was working on his land in the valley, he unearthed his own hatchet. When he returned to the village, he saw Wang again in the neighbourhood. This time, he found Wang differently, as Wang no longer appeared to be behaving suspiciously like a thief would.
What was the change? It was not the behaviour of Wang but the villager’s state of mind. Bias makes us have a different mindset.”
It is most interesting to note from this tale that the concept of bias has a very long history and had been narrated long before it was properly and systemically investigated. In the 1960s, Peter Cathcart Wason, an English cognitive psychologist at University College London, developed the hypothesis of “confirmation bias” via the “2-4-6” task, four card task, and THOG task. Additionally, he had designed a series of experiments to argue against Piaget’s formal operational stages of cognitive development, which proposed that adult humans were reasoned by logical analysis. According to Wason, our thinking is often illogical and irrational once expectations of outcome come into our minds.
Today, we use the term “confirmation bias” in a more general sense. “Confirmation bias” is a term describing the tendency to search for, interpret, favor, and recall information in a way that confirms or strengthens one’s prior personal beliefs or hypotheses. Often, one would subconsciously prefer remarks and feedback that assimilate with their beliefs, and at the same time reject or even devalue opposing ideas and notions.”
By Ting-Kwok IU (Kwok, Ng & Chan, Solicitors & Notaries) on Apr 02, 2020. Kluwer Mediation Blog