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How We Tell the Tale Determines How We Resolve the Problem

People who are joined together by a dispute -- which includes everyone engaged in litigation and their attorneys -- are suffering more than most from a universal cognitive bias known as fundamental attribution error.  FAE is one of the ways we explain our troubles to one another. 

If we have suffered misfortune and are able to attribute our loss to the actions of another, we will universally attribute the series of events resulting in our loss to the bad intentions or evil character of the person we lawyers call "the defendant." 

If we are the defendant, we will universally attribute the series of events resulting in the injured party's loss to the circumstances causing Plaintiff's harm (or, of course, to the Plaintiff's evil intentions). 

The attribution of harm primarily to character or motive on the part of the victim and primarily to circumstance on the part of the accused is fundamental because it is hard-wired into the way we think.  It is an attribution error because it attributes effect to a particular type of cause.  It is error because all human activity and the inevitable conflicts that arise from it

"take[s] place not only between individuals, but in a context, culture and environment; surrounded by social, economic, and political forces; inside a group or organization; contained by a system and structure; among a diverse community of people at a particular moment in time and history; on a stage; against a backdrop; in a setting or milieu."

See Ken Cloke's Conflict Revolution (this from the Introduction) here and my review of it at The Complete Lawyer here.

In other words, all events, conflicts, injuries, and benefits, all causes and effects are determined both by human actors and by circumstance.  We are the cause and the effect of everything that surrounds us and everything that we surround.

How does this knowledge help us resolve our disputes and why does the way we tell our stories hold the key to resolving them?   I could give you more explanations from the field of social psychology or I could simply tell you a story.  In this case, I tell the story of a book of stories written by Malcolm Gladwell who writes about the stories we tell ourselves and one another about success. Gladwell, we're told, introduces us to Bill Gates as

a young computer programmer from Seattle whose brilliance and ambition outshine the brilliance and ambition of the thousands of other young programmers. But then Gladwell takes us back to Seattle, and we discover that Gates’s high school happened to have a computer club when almost no other high schools did. He then lucked into the opportunity to use the computers at the University of Washington, for hours on end. By the time he turned 20, he had spent well more than 10,000 hours as a programmer.

At the end of this revisionist tale, Gladwell asks Gates himself how many other teenagers in the world had as much experience as he had by the early 1970s. “If there were 50 in the world, I’d be stunned,” Gates says. “I had a better exposure to software development at a young age than I think anyone did in that period of time, and all because of an incredibly lucky series of events.” Gates’s talent and drive were surely unusual. But Gladwell suggests that his opportunities may have been even more so.  

Continue reading the NYT Sunday Book Review of Gladwell's new book, Outliers, here.

More on using dual narratives to help you settle litigation tomorrow (or later this afternoon)

Comments (3)

Read through and enter the discussion by using the form at the end
Guy Harris - December 1, 2008 12:06 AM


Once again fundamental attribution error shows up in a discussion of conflict resolution. Amazing how prevalent this bias is in our thinking.

Thanks for listing these resources and for your comments to help put the resources in context.

I like your commment: "We are the cause and the effect of everything that surrounds us and everything that we surround." Funny how we often blame others when the real cause for our problems lies within us.

Great post!


Gavin Craig - December 1, 2008 9:48 AM

Thanks for the post. It's always interesting to see people (litigants) blame others for their failures. If you look hard enough there is always someone to blame, no matter how tangential the player is to the misfortune. In my business, commercial and business litigation, when one party breaches a contract the question is why? There is always a reason. Many times the stated reason is the real or perceived actions of the other party. However the real reasons are usually much more complicated. One thing I have observed in my years of practice: people do not blame themselves for a bad result or poor judgment. It is always caused by others.

The other problem is the intersection of ego and principle, and fault. If the conflict is based on principle, ("It's the principle, not the money.") there is rarely a good result for anyone. When the claim is based on "Principle," there is always someone else to blame. Thanks for the post and the references.


Vickie - December 1, 2008 1:03 PM

Thanks for dropping by to comment Guy and Gavin. Part of a mediator's job, of course, is to explore the "principled" reasons for the lawsuit or its defense; help the "victim" recognize the part he played or circumstances contributed to his losses; help the "perpetrator" understand what part she genuinely played in the circumstances giving rise to the loss; and, to reconcile the conflict story (right vs. wrong) into an accountability story (we are all in this, for good or ill, together) after which the $$$ issues become relatively easy to resolve. Is this process EASY? Heck no! That's why lawyers and their clients are turning more often to full-time mediators rather than sitting judges or part-time volunteers to help them settle the most intractable disputes brought to them. (sorry for the pitch, but you'll forgive me, I'm certain; I don't pitch much here)

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