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People tend to process information through some of the same filters over and over again. We call these filters "cognitive biases." They are hardwired into our brains. One of these biases is called the "Backfire Effect." People look for patterns in evidence so the world does not become a string of disconnected observations. As we are starting to piece together a pattern, or develop a hypothesis, one might think that a rational person would reconsider the hypothesis when faced with an inconsistent fact. It actually takes an extra cognitive step to approach the world that way, since our tendency is to strengthen the developing hypothesis in the face of the inconvenient evidence. Our minds value seeing some pattern over the chaos of having no pattern. In a mediation or negotiation, the backfire effect works against resolution. Consider a breach of contract dispute. One party may be moving toward a view that the other's non-performance was part of an intentional plan. The non-performing party may have a series of objectively valid reasons for non-performance - or, at least, reasons it sees as objectively valid. It therefore views the other party's refusal to accept the explanation as being irrational and overreaching. There can be many currents and countercurrents going on, but one of them is probably the backfire effect: over the course of the dispute, the party claiming breach has become increasingly strident in rejecting each of the reasons for non-performance, viewing each as increasingly desperate attempt to avoid responsibility rather than part of the true picture of events. The non-performing party starts from the presumption that events excuse its performance and increasingly digs its heels in as the other side rejects its clear factual narrative. As each party cements its position, legal rights become irrelevant. When the backfire effect kicks in, one of the mediator's jobs is to separate the story from the resolution and sidestep the effect. The role of this particular cognitive bias is to maintain a developing narrative, but if the mediator can de-emphasize the narrative - especially in a commercial case - it frees each partyto focus on what the best resolution for it may be under the circumstance.Whether that involves "narrative" mediation techniques or more traditional bargaining is part of the art of the mediator! Advocates can use some cognitive biases to "spin" the mediator. However, they do not often have luck with the backfire effect, since mediators generally have a high tolerance for chaos and do not become as invested in their clients' story as an advocate might. On the other hand, by positioning their story properly, they may be able to use the mediator as a translator to avoid exacerbating the backfire effect by the other party or parties. If uncomfortable information is filtered through the mediator, it may receive less pushback. Jeffrey Fink http://www.jfinklawadr.com is an attorney in Wellesley, Massachusetts who helps businesses and families resolve disputes as a mediator, arbitrator, settlement counsel and collaborative attorney.
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cognitive bias, bakfire effect, mediator,
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