‘When people are placed in a partisan role or otherwise have an objective they seek to accomplish, they are prone to pervasive cognitive and motivational biases. These judgmental distortions can affect what people believe and wish to find out, the predictions they make, the strategic decisions they employ, and what they think is fair. A classic example is confirmation bias, which can cause its victims to seek and interpret information in ways that are consistent with their pre-existing views or the goals they aim to achieve. Studies consistently show that experts as well as laypeople are prone to such biases, and that they are highly resistant to change, in large part because people are generally unaware that they are operating.’ (‘Improving Lawyers’ Judgment: Is Mediation Training De-Biasing?’ by Douglas N. Frenkel & James H. Stark, Harvard Negotiation Law Review [Vol. 21:1]). As they discuss in their article, ‘Perspective-taking’, which is the ability to see things from another person’s point of view, is a vital skill for Mediators because, ‘a person in a neutral role seeking to secure an acceptable resolution between competing parties must attempt to imagine and ideally understand how each participant in a dispute views and experiences it. [That is because], to produce the change needed to resolve a conflict or improve parties’ understanding of each other, information must be exposed that counters the parties’ existing viewpoints and biases. Unlike partisan representation, no successful outcome is possible in a settlement or even transformation-oriented mediation unless the mediator forms accurate impressions of the participants, eliciting highly individuated (and often concealed) information about them and their perspectives. When a desired task outcome depends on such accuracy, research indicates that people will think more deeply about available information, paying increased attention to information that is inconsistent with their initial impressions.’ As I explain in my forthcoming article for Trusts & Trustees (OUP) – ‘Mediating probate and trust disputes – process challenges and tools: part 2’: ‘M needs to discover each P’s state of mind and attitude. Each P will view their case through the lens of their own perspective. To help the P’s climb out of their positional trenches and walk step by step toward the middle of the ground which separates them, M must first see and feel the world as they do. M should start from where each P is currently standing, by sharing their perspective, both intellectually and emotionally.
–     What is the soundtrack going on inside each P’s head?
–     Why does each P feel the way they do?
–     What has prevented the P’s from coming to the table until now?
– Why are the P’s here today and what do they each hope to achieve in the time available?’ The article is in production for publication in print worldwide in September & online in July.