Find Mediators Near You:

Cognitive Errors To Watch For As The Mediation Profession Discusses The Important Issues

Momentum seems to be building for mediator credentialing in the United States.  Change is no doubt coming. What form that may ultimately take remains to be seen — whether public licensing by the state (least likely) or the adoption of credentialing mechanisms by major ADR membership organizations that dominate the national scene (most likely). This is but one of several difficult and divisive issues that the field will grapple with in the years to come.

As we contemplate and debate change, let us hope that we ADR professionals can do what we ask of our clients: to listen with open minds, to ask questions, and to be alert to possibilities.

I appreciate that doing so is easier said than done. I know this from my own humbling experience participating on a committee that wrestled with a possible change in Massachusetts state law that protects mediation communications. From the beginning, the work of that committee grew entangled with the charged issue of mediator qualifications; not surprisingly, stalemate resulted. Let’s just say that mistakes were made (by present company included).

Drawing on the lessons that tough teacher experience has taught me, I would present the following list of the cognitive errors I see as most likely to trip us up as our profession debates the important issues we face. And by all means please suggest your own in the comment section below.

Reactive devaluation. As readers know, reactive devaluation (PDF) is the tendency to devalue or discount a proposal simply because the person who proposed it is someone we don’t much like. We see our clients at the mediation table commit this very human blunder. Not surprisingly, mediators are as human as their clients. Honesty compels us to acknowledge that there will always be people, even within our own field, who rub us the wrong way. That doesn’t, however, mean that we should automatically discredit or devalue their opinions. Even jerks can be right.

Confirmation bias. Confirmation bias is our tendency to seek out or interpret information that confirms what we already believe or to discount information that doesn’t support our world-view. Put your hand up if you’ve never done this. See? No hands in the air. That confirms precisely what I suspected.

Status quo bias. Recently journalist James Surowiecki, in an article for the New Yorker, wondered out loud whether the American public’s resistance to changing the existing health care system results from status quo bias –a tendency to prefer things the way they are.  Such resistance to change is rooted in loss aversion, according to “Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias” (PDF), a paper published by professors Daniel Kahneman, Jack L. Knetsch, and Richard H. Thaler, which points out that “individuals have a stronger tendency to remain at the status quo, because the disadvantages of leaving it loom larger than advantages.” If you catch yourself saying “because we’ve always done it this way” or championing “the devil we know” over “the devil we don’t”, you may have fallen into the status quo snare.

The influence of authority. In his famous work, Influence: The Psychology of Persuasion, Robert Cialdini delves into our susceptibility to the manipulations of others, describing six basic categories of weapons of influence. Included among the six is authority, a particularly powerful instrument of persuasion, used to influence everything from consumer purchasing decisions to support for political candidates. In fact, mere symbols of authority trigger our compliance, from impressive-sounding titles to “the well-tailored business suit”.  But if there’s one thing the current economic crisis has taught us, it’s that even the experts can get it wrong. So let’s draw advice from a sixties-era bumper sticker: Question Authority.

Finally, let us not forget the overconfidence effect – our boundless optimism about our own abilities and talents, despite evidence to the contrary. That includes of course our overconfidence in our ability to recognize and avoid cognitive errors.

For now, let us all be supremely overconfident that we will, one way or the other, slip up.


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 >

Featured Mediators

View all

Read these next


The Use Of Mediation In Schools

Throwing a pen across a room. Finding a quiet place to sit and cry. Noticing that you suddenly hate your manager and you don't know why. Emotions at work –...

By Nigel Singer

AudioBlog: Resistance is Fertile

Texas Conflict CoachIn Your Brain on Conflict series, we kick off with Scott Rogers, Founder and Director of the Institute for Mindfulness Studies. What happens in our brain when we...

By Patricia Porter

What Do Tiger Woods, Tom Hanks And Top Mediators Have In Common? The Market Conditions And More…

From the Mediation Matters Blog of Steve Mehta. One of the biggest questions for all people considering the profession of mediation is, “Can I make money being a mediator?”  Many...

By Steve Mehta