Why are we at Impasse?

First, mediators must appreciate why lawyers and their clients are struggling with these cognitive biases. Cognitive science has identified two information processing systems within the human mind: System 1 and System 2. 

System 1 is an intuitive system that automatically and quickly processes information using unconscious innate heuristics and over-learned habits to produce a judgment in seconds. This is sometimes referred to as “fast thinking.”

System 2, on the other hand, is an analytic system that uses reflective, conscious thought processes to solve complex problems, so-called “slow thinking.” 

Cognitive biases, like Loss Aversion, Overconfidence Effect, Reactive Devaluation, and Confirmation Bias, as well as flawed risk assessments, generally flow from System 1 fast thinking. The challenge for mediators is to encourage the parties to think again using System 2 slow thinking.

For mediators, there are three critical skills for encouraging this shift: asking, listening, and telling.

Asking

An excellent resource for mediators that goes into this issue in great depth is, “Why Can’t They Settle? The Psychology of Relational Disputes” by Harry L. Munsinger and Donald R. Philbin, Cardozo J. Of Conflict Resolution [Vol 18: 311 2017]. One of the key takeaways from this paper is, “The most effective way to overcome optimism bias is for the mediator to test the client’s assumptions about the case through open-ended questions that shift the participant from System 1 to System 2 information processing.”

The open question, the question that cannot be answered with a simple “yes” or “no,” is a critical communication tool all mediators are drilled on in their basic training. Still, in the hurly-burly of real mediations, day after day, it’s a tool that sometimes languishes, unused, in the mediator’s toolbox.

• “What’s important to you about this dispute?”
• “How do you understand the other side’s perspective?”
• “Why do you think we’re stuck at this point?”
• “What are the possible outcomes if this matter should proceed to trial?”
• “How would your reservation point for this negotiation change if you adjusted the probabilities you have assigned to each of those possible outcomes?”

These questions and others like them cause lawyers and their clients to engage their System 2 thinking processes fully and can often serve as an essential first step to getting a mediated negotiation beyond the impasse.

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