“We do not see things as they are. We see things as we are.” Anais Nin
Today in the Mediation class that I teach we discussed barriers to settlement in mediation, which include (1) cognitive barriers and the role of perceptions and (2) the impact of fairness. According to Dwight Golann and Jay Folberg in their book Mediation, The Roles of Advocate and Neutral, a key step in a mediator’s work is to identify the obstacles that are preventing parties from negotiating effectively. It is essential that a mediator develop skills to address the challenges of cognitive barriers and differing views of fairness in order to empower the parties to a dispute to reach settlement in mediation.
A solution to resolving conflict is to be aware that people often see the same situation very differently. Selective perception is at the core of our tendency to see the same events differently. The effect of selective perception is enhanced by confirmation bias – our tendency when perceiving conflicting data to give more weight to information that fits our pre-existing beliefs and wishes. (For example, a coffee lover may only read articles that discuss the benefits, and not the risks, of drinking 6 cups of coffee per day.) We tend to estimate the value of items by comparing them to benchmarks. The problem is that most people are anchored by the benchmark, not understanding how different their particular case may be from the comparison point. (Remember the MacDonald's case in 1992 where a woman who spilled hot coffee in her lap was initially awarded almost $3,000,000 for the burns she suffered?) We tend to be persistently overly optimistic about the outcome of legal cases. We are also overconfident about our ability to assess unknown facts.
Differing views of fairness are also at the center of many litigated conflicts and failed negotiations. Fairness can focus on the outcome as well as on the process. Both components shape parties’ willingness to negotiate and to accept settlements.
For example, in the Barry Bonds’ case in October of 2001, differing views of fairness played a large part in the parties’ failure to settle with each other. More than 40,000 fans were at the ballpark to see Barry Bonds add another home run to his record breaking total of 72. Bond’s 73rd home run ball landed in Alex Popov’s outstretched glove. Within seconds, Popov fell to the ground as a rush of people converged on him and the ball. Madness ensued. He dropped the ball. When Popov was pulled from the pile, the ball was no longer in his glove. At the same time, Patrick Hayashi was also knocked over by the crowd. While on the ground, the ball rolled toward him and he picked it up, claiming it as his own. Patrick Hayashi emerged with the ball in hand.
Both men claimed ownership of the ball and both thought it was worth over $1 million, based on the recent sale of Mark McGuire’s 70th home run ball for more than $3 million. Both men stated that principles of fairness entitled each of them to the ball. Several mediators suggested that the ball be sold and the proceeds split. Neither Popov nor Hayashi thought an even split was fair. Following 18 months of bitter litigation, the judge finally ordered that the ball be sold at auction and the proceeds split. The ball was sold for $450,000. Popov and Hayashi each received $225,000 minus auction expenses and attorneys’ fees exceeding $225,000.
What got in the way of Popov and Hayashi agreeing on decisions about Bonds’ home run ball? They were two strangers from different cultures with an all or nothing attitude about an object thought to be worth a million dollars that landed in their hands in an event on national television. There were no well established legal rules in this instance since both of them had taken possession of the ball lawfully. They both anchored the value of the ball with the sale of the McGuire ball. Selective perceptions and confirmation bias made each of them believers in the righteousness of the positions they held and in assessing what factors a judge would consider in deciding who had rights to the ball. They had differing definitions of fairness. Last, they were over optimistic about the value of the ball and judgmental overconfidence was at play with regard to how a judge would rule.
Source: Golan and Folberg, Mediation, The Roles of Advocate and Neutral, Third Edition, 2016
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Ellice Halpern, J.D., is a Virginia Supreme Court certified general and family mediator.