Daniel Kahneman’s book “Thinking, Fast and Slow” has been discussed as a guide and cautionary tale for mediators and advocates as it documented the biases of intuition inherent in the decision-making process. (See “Neutral Corner: Experts advise to ‘think slow’ when handling mediations,” Feb. 22, 2017, The Indiana Lawyer). Kahneman devised the well-known “Linda” experiment to explore the role of heuristics in judgment and decision-making. He described Linda as follows:
“Linda is thirty-one years old, single, outspoken, and very bright. She majored in philosophy. As a student, she was deeply concerned with issues of discrimination and social justice, and also participated in anti-nuclear demonstrations.”
Experiment participants were then asked:
“Which is more probable?
1. Linda is a bank teller.
2. Linda is a bank teller and is active in the feminist movement.”
Approximately 85 percent to 90 percent of the undergraduates at major elite universities to whom this question was posed chose option two – a nonlogical response as it described a person in a subset of the first.
The “Linda” problem exemplified the reason that “Thinking, Fast and Slow” caused many decision makers and advocates to question the basic premises and foundations of the decision-making process.
A recently published book chronicles the decades-long work of Hans Rosling, a social scientist and international professor of health. The book, “Factfulness,” published in the spring of 2018, not only reinforces the findings of Kahneman, but also builds upon them and reveals how human instincts and intuition lead the majority of people to see the world incorrectly and to draw empirically wrong conclusions about basic human conditions.
“Factfulness” is the result of a collaboration of the late Hans Rosling, Ola Rosling and Anna Rosling Ronnlund to synthesize and document Roslings’ studies and research into public health conditions and the public’s perception of those conditions.
Rosling began his book as he began most of his TED talks, seminars and presentations: by posing 13 multiple-choice questions. Space limits this discussion, but an examination of three of these questions and the responses to them will illustrate the underlying premise of Rosling’s work. The three illustrative questions are:
In all low-income countries across the world today, how may girls finish primary school?
A. 20 percent
B. 40 percent
C. 60 percent
How many people in the world have some access to electricity?
A. 20 percent
B. 50 percent
C. 80 percent
How many of the world’s 1-year-old children today have been vaccinated against some disease?
A. 20 percent
B. 50 percent
C. 80 percent
The correct response to each question was C. Only 10 percent of the persons tested in the United States answered the first question correctly, 27 percent answered the second question correctly and less than 17 percent answered the third question correctly. Rosling points out the obvious: that these results are below random selections. The subtitle of Roslings’ book is “Ten Reasons We’re Wrong About the World — and Why Things are Better Than You Think.”
As did Kahneman, Rosling opines that there are multiple instincts that cause human beings to get the world wrong, to see it generally much worse than it really is. The natural, perhaps naturally selected, tendency for people to perceive the world through prisms of negativity, fear and generalization contributes, Rosling believed, to vast majorities of persons being fundamentally wrong about basic circumstances of their world and the world around them.
Implications for advocates, mediators
A core function of judges, juries, advocates and mediators is the evaluation and assessment of information and the formation of judgments and evaluations based upon that information.
The work presented in the two books discussed above informs us that an individual’s initial judgment and evaluation is often proven upon subsequent examination to be incorrect. The findings of these books should underscore for mediators and advocates the role these phenomena play in what is a central function of the legal system: finding and examining facts and drawing conclusions therefrom.
The medical profession came to grips with similar cognitive and systemic realities and undertook a process of professional evaluation that resulted in the move to evidence-based medicine. Beginning in the late 1960s and evolving to the present, multiple studies and research demonstrated the need to ground medical judgment in experimental evidence and avoid excessive reliance on the subjective and personal experience of individual physicians. Evidence-based medicine was the result.
Over the course of thousands of mediations, this mediator continues to observe how initial or preliminary conclusions changed or modified upon further thought or exploration. Much has been written about the mediation “process” and the role and importance of certain aspects of that process, including joint sessions and robust risk analysis. It is submitted that it is critical for advocates and mediators to trust the process and allow appropriate (and non-prejudicial) opportunities for exploration, examination and re-examination of facts, issues and positions.
With such a robust process, it is hoped that the realities of implicit bias and natural thought processes that can lead to faulty conclusions may be avoided, or at least reduced.•
• John R. Van Winkle, of Van Winkle Baten Dispute Resolution, is a former chair of the American Bar Association Section of Dispute Resolution and author of West’s Indiana Rules of Dispute Resolution Annotated. Opinions expressed are those of the author.