As lawyers we spend a lot of time trying to evaluate the likely outcome of our client’s case. We sift through the evidence and study the law. We talk to our colleagues and debate valuation. We try to determine the likelihood of our desired outcome in the face of an uncertain trial or arbitration.
We also try to figure out if we should mediate or settle the case and on what terms. We proceed with confidence in the logic of our opinions and analysis. But forty years of research by behavioral economists has shown that, when it comes to assessing the probability of an uncertain outcome, our analysis may not be logical and may very well be wrong. Welcome to the fascinating world of cognitive bias.
As powerful as the brain may be, it is still subject to limitations. In order to solve problems and make judgments quickly, our unconscious brain uses shortcuts known in psychological terms as heuristics. While they may be helpful in some situations, heuristics can also lead to systemic errors in thinking known as cognitive bias. This bias affects the decisions and judgments we make.
In a mediation, an experienced mediator will try to help lawyers and clients think about their cases in alternative ways, in part to uncover whether unconscious, cognitive biases have affected their case assessment.
Here are a few cognitive biases which can influence your thought process as you work. Remember, they are unconscious, so when you prepare your case you have to make a deliberate effort to counter them. Confirmation Bias When we talk about lawyers, we call this advocacy bias.