Bias: a Good Reason to Settle Before Trial?

In a punchy headline, the ABA Journal sums up the message a U.S. Supreme Court justice has for his critics in “I’m Conservative, But Not Biased, Scalia Says … So Get Over Bush v. Gore“, a story about Scalia’s recent interview with the TV news magazine 60 Minutes.

As I read the story, I thought back on other controversial cases in which those critics questioned Scalia’s ability to be impartial. For example, there’s the infamous duck hunting trip with Cheney, when a case involving the Vice President was pending before the Court. Despite Scalia’s insistence that “I do not think my impartiality could reasonably be questioned”, folks who understood something about the subtle tools of persuasion weren’t so reassured. One of those tools, reciprocity, is what creates a powerful sense of obligation when we receive a gift from someone else.

What makes bias so pernicious is that all too often we are blissfully unaware of our own. I’m guessing that maybe all that certainty is simply evidence that Scalia has fallen victim to one of the most pervasive of cognitive errors, overconfidence bias, which explains why a large majority of us place ourselves in the statistically impossible top percentile when it comes to things like driving skills, intelligence, negotiating abilities, even humor. As two Cornell University researchers put it, most of us are unskilled and unaware of it (PDF).

Scalia is undoubtedly conservative. But unbiased? Given how blind we all are to our own biases, this makes a good case for settling before trial; it’s tough enough being at the mercy of our own cognitive errors. Why be at the mercy of those of the judge, too?

                       

Diane J. Levin

Diane Levin, J.D., is a mediator, dispute resolution trainer, negotiation coach, writer, and lawyer based in Marblehead, Massachusetts, who has instructed people from around the world in the art of talking it out. Since 1995 she has helped clients resolve disputes involving tort, employment, business, estate, family, and real property… MORE >