Mediation Advocacy: the Self-Serving Bias
(top: we assimilate and organize data in our own favor: click here for full size chart)
Despite our own beliefs that we've adequately analyzed the weaknesses in our own cases, we have all been told at one time or another that we are "buying our own bull%#@^."
Is there a remedy?
First the Social Science Research
According to Bargaining Impediments and Settlement Behavior, studies of self-serving bias on estimates of probable damage awards provide strong evidence that:
- we assimilate information based on our existing biases (remember the OJ verdict);
- even when told we're doing so, we continue to organize information in such a way that it supports our existing opinions;
- the receipt of additional information, without more, will simply "confirm" existing biases; and,
- to make a difference in the parties' views of the merits of their case, mediation practices must include techniques for de-biasing the parties.
The Research
Research subjects were given the identical "case" materials and randomly assigned roles as "Plaintiff" or "Defendant." The subjects were put into bargaining pairs and asked to: (1) estimate a "fair" award by a Court to the Plaintiff; and, (2) to attempt to settle the dispute.
The experimental results and their implications were reported as follows:
- Plaintiffs' predictions of the [probable award] were, on average, $14,527 higher than defendants'.
- Mean plaintiffs' fair settlement values were $17,709 higher than defendants'.
- Not surprisingly, the settling parties' assessments of what a fair settlement would be and what a judge would likely award were closer together than were those who did not settle.
- Among the 59 pairs who settled, the mean difference between the plaintiffs' and defendants' predictions of the judge's award was $9,050.
- For the 21 pairs who did not settle, the average difference was $29,917.
- The strong correlation between the magnitude of the bias in a bargaining pair and non- settlement supports the conclusion that the self-serving bias often prevents parties from settling disputes at the most advantageous time and for optimal mutual benefit.
- Even when asked to tell the "other side's" story in an essay before predicting possible awards or when told about the existence of the bias, the subjects continued to evaluate the case according to their own material interests.
- Only in one experimental setting where subjects were both informed of the bias and made to write an essay substantiating the other side's case was the effect of the bias mitigated.
- That subjects were unable to rid themselves of the bias when informed of its existence demonstrates that it is not a deliberate strategy.
Other findings of the experiments point to biased assimilation of information as the likely psychological mechanism underlying the self-serving bias.
When subjects were presented with eight arguments favoring the side they had been assigned (plaintiff or defendant) and eight arguments favoring the other side and were asked to rate the importance of the arguments as perceived by a neutral third party, there was a strong tendency to view the arguments supporting one's own position as more convincing than those supporting the other side, suggesting that the bias operates by distorting one's interpretation of evidence.
This study suggests that litigants may not be seeking to maximize their own payoff, but are rather trying to obtain what they deem to be fair.
Conclusions from the Experimental Data
The application of the self-serving bias to bargaining behavior led the authors of the study to tentatively conclude that
- exchanges of information are not in themselves necessarily conducive to settlement, i.e., obtaining more discovery before the dispute is "ripe" for settlement may be neither cost-efficient nor an effective settlement strategy;
- the importance of information exchanges to the settlement of a dispute can only be analyzed in terms of how that information may effect preexisting biases, which suggests that attorneys pay greater attention to their opposition's case theories when analyzing information obtained during discovery; and,
- to act as an effective counter to the self-serving bias of both "sides," mediation practices should be, at least in part, directed at de-biasing parties rather than simply facilitating information exchange.
