Mediator’s Corner

Mediating and the Medical Profession


Too often, we mediators (like that twentieth-century doctor), rely on “gut instinct.”  Also like those in the medical profession, our ability to fulfill our potential to help others is dependent on the extent to which we embrace new technological tools.

My wife works with children whose mothers were on drugs when the babies were in utero.   Looking at the development of a baby’s brain which received physical and emotional support versus those which did not, breaks your heart.  Nevertheless, that knowledge is incredibly important in guiding people like my wife to give the children what they need.  Similarly, we mediators have the capability to learn how parties before us physically react to what is happening in mediation — and to change our conduct accordingly.

In terms of psychology, Nobel winner Daniel Kahneman’s groundbreaking work Thinking, Fast and Slow has tremendous implications.  Kahneman posits that the belief that human beings usually behave rationally, is inaccurate in several key respects.  First, we have what he calls an “overconfidence bias;” that is, based upon our knowledge and experience, we think we know much more than we actually do.  For example, in one study, people rated their answers as “99% certain” but were wrong 40% of the time.

Second, we have a tendency to believe we are less at risk to be subject to a negative event than we are.  There are numerous examples here:  smokers who think they will not contract lung cancer, investors who think they are less exposed than others, people who think they are less likely to be crime victims.

The third component is “loss aversion.”  People feel the loss of $100 much more than they enjoy a $100 windfall.

Together this lethal cocktail causes people to overestimate their ability to determine how the case will turn out (99% certain affect); underestimate the likelihood of a negative outcome (the legal equivalent of the over-optimistic investor); and misjudge the value of a concession (the party making the concession will overvalue it (the loss of the $100) and the party receiving the concession will undervalue it (the $100 windfall)).

As mediators, understanding these biases in the litigants (and equally important, in ourselves) and helping everyone identify these biases and work through them in a respectful and non-threatening manner is both extremely difficult but also one of the most valuable skills we can bring to a mediation.

An in-depth discussion of how this can and should be done is well outside the scope of an article like this.  But we do have a model to follow: our medical brethren.  By going down a similar path, we can transform our profession the way they have transformed theirs.  Just as their embrace of change has extended the length and quality of our lives, our own impact as mediators can be no less profound.

* Duf Sundheim is a meditator at GPS Mediation. In addition to mediating litigated cases, he serves as a court-appointed provisional director, volunteer settlement judge in Santa Clara County, volunteer mediator for the Peninsula Conflict Resolution Center and teaches classes on mediation with judges and other ADR specialists.

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