Why Parties Sometimes “Take Things Personally,” And What Mediators Can Do About It

Have you ever had someone blame you for something when there was nothing you could have done to change the situation? For example, have you ever made a promise to someone (say, to be at a certain place at a certain time) had something come up, and then have them become offended – where they just “assumed” it was “your fault”? More likely than not, you know exactly what I’m talking about. This is the Fundamental Attribution Error (FAE) at work, and it pops up all the time. In fact, the FAE has huge implications for not only our everyday lives, but also for many sources of conflict between mediating parties.

While there are many different reasons why people (parties) may “assume” things about one another, one of the biggest reasons is the FAE. Put simply, the FAE is a person’s tendency to “assume” that the reason for someone else’ behaviour is “personal,” “internal” – due to that person’s personality or disposition, and not due to the “external” situation. For example, say you’re late for an anniversary dinner date and your spouse has “assumed” that your tardiness was because you just didn’t “care enough” about spending time with them. Imagine further that, in reality, you got stuck behind a huge accident on the freeway – you had absolutely no control over the situation. But by the time you arrive home your spouse has made a judgment – indeed, your spouse has committed a FAE without knowing it. Your spouse assumed you had control over the situation, when you did not. Further, when someone “assumes” that you can control events, they become offended because they usually also assume that you didn’t personally care about their feelings, and their offense becomes “your fault.”

In situations like this, successful resolution of the misunderstanding often comes down to the trust between two people, which is often based on previous patterns of behaviour. Are you consistently late for dates? Do you normally go out of your way to ensure that your spouse knows how much you appreciate and care about them? When someone “commits” a FAE, they only have the context of the situation (i.e., your past behaviour) by which to reevaluate their assessment (and thus, their potential “offense” at what you’ve done). Unfortunately, as humans we tend to only consider the “context” of actions when those actions are our own. We give ourselves the benefit of the doubt, but it’s a different story when judging others.

In fact, by the time a case crosses your desk as a mediator, more likely than not at least one of the parties (often the plaintiff) is wholly convinced that the dispute only exists because the other party did or did not do something to cause it. And they may be right! Many times, parties did cause the dispute and therefore the other side is not committing the FAE—they are correct about whose fault it is. But sometimes, there may be a reasonable explanation that a party was not wholly to blame, because of the external context the other side has not considered. For instance, perhaps a sub-contractor did not meet a contract deadline but could not do so because the sub-contractor’s main supplier delivered needed goods late, etc. Sometimes, parties assume the other party “harmed” them and could have prevented it when they in fact could not.

As mediators we know too well that facts can often be “gray,” convoluted, incredibly complex – and therein lies the conundrum: When parties can possibly “blame” other parties for a negative experience or outcome, they will likely do so because it’s in their nature to “assume” that someone was always in control of events. All too often, “blame” lies somewhere in the middle of the dispute and arguments of potential liability end up dominating the most complex cases. This is especially true when parties do not have a previous personal or professional relationship: As with our hypothetical dispute between spouses, if parties do not have previous context by which to judge the validity of their FAE, they are more likely to commit it and assume the other side is to blame – regardless of the reality.

So as mediators, what can we do? Of course, one of our most fundamental responsibilities is to remain neutral – to not even worry about assessing liabilities of a case, but instead to help parties think through all potentialities and so pursue healthy, lasting settlements. But there are some instances where it is nonetheless beneficial for parties to be guided in fully examining potential FAE’s they may have committed. It is always better for a client to examine their stance in mediation than to enter trial and find that there are perspectives they haven’t considered. In order to help myself remember how to break down my approach to potential FAE-related “roadblocks” in a dispute, I like to keep it simple and use the same acronym as the problem itself: FAE.

First, understand the Facts of the case from both sides, as best you can. This is a very elementary starting point, but it’s important – and often tricky. Even though we are neutrals, we certainly have the opportunity and, I feel, responsibility, to help our clients assess the situation in ways they may not have previously done if it would be helpful in moving towards settlement. I always have my “feelers” out for potentially relevant, alternative “interpretations” of the dispute by either side. I ask myself the questions: Are there any facts from either party that suggest liability may not lie where one (or both) of the parties assumes it might? Further, do I think one or both of the parties may be committing a FAE? Of course, the whole point of many cases is that one or both sides feel they have an adequate factual basis from which to feel justified in their positions – right or wrong. If you sense during proceedings that a party may benefit from considering a potential FAE, then you might want to address it.

Second, if you do choose to Address a potential FAE, make sure that 1) it is relevant to the dispute-at-hand (e.g., not something that neither party considers important anyway and that thus will likely not cause stalemate later) and that 2) addressing the assumption is worth the delicate balance of indirectly calling attention to a potential “mistake” or “bias” a party may have. Remember, when you address a potential assumption mistake of a party, you must help them keep face. If you do seek to address a party’s potential FAE, do it delicately. The best way, I’ve found, to help a party “think through” any assumptions they may have made is to ask general questions regarding the assumption. For instance, ask clarifying questions from the standpoint that you are seeking clarification on the potentially ambiguous issues involved. You will be indirectly helping the party think through and clarify their own thoughts on the issues – likely in ways they may not have considered before. This is where the “delicate balance” comes in. You may very well find that the party interprets your questions as an “attack” on their perspective – if they do, move to the third stage of addressing a potential FAE: Empathy.

When addressing potential FAE’s, the key word is Empathy. Simply put, there is no “right” or “seamless” way to help a party think through their assumptions. There are only methods you can use to ensure that parties know you are seeking to help both sides find resolution from a neutral stance. For instance, questions such as, “is there any chance that the other party may not be directly responsible?,” or, “are we sure of all potential interpretations of this case?” can be important for clients to hear, but are all potentially interpretable as a “threat” to their established viewpoint. I cannot stress enough how important – and powerful – it is to consistently communicate empathy as a mediator: especially when helping clients re-evaluate viewpoints they have assumed and that may be emotionally charged. Communicate that you are “seeking to ensure that we have thought through all possible alternatives.” If necessary, it may be beneficial to directly reiterate your role as a neutral both on “no one’s side,” but also on “everyone’s side.”

All-in-all, addressing potential FAE’s within mediation is a delicate balance, and is not a process to be undertaken lightly. It should be done rarely – only when there is potential for a party’s assumptions to prevent them from considering viewpoints or options that may affect their positions on key issues. For a party’s FAE to be “important” it does not necessarily have to be about something that would lead to “stalemate,” but instead might just be about an issue that is nonetheless important to the case, and that might determine the outcome of even one significant aspect of the settlement. Finally, realize that often it may not matter to a party how or why a perceived slight or harm was committed – they may only value being recompensed (and legally, it may be the other side’s fault regardless). Regardless, one of our roles as mediator is to understand our clients’ potential biases and motivations as we work with them to develop lasting settlement. The fundamental attribution error is one of the most prevalent cognitive biases in human thinking, and as such it is essential that as mediators we both understand and know how to work with this and other potential mental “roadblocks” as they arise.

by Zachary Ulrich

Zachary P. Ulrich is currently a researcher for Pepperdine School of Law’s Straus Institute for Dispute Resolution. He holds a JD, Masters in Dispute Resolution, and Masters in Psychology (Clinical). Zach is an alumnus of General Electric’s highly-esteemed Financial Management Program, where he held several financial analysis positions of increasing responsibility and completed a graduate-level education in business management and operations. He has published over twenty-five articles and commentaries on organizational conflict resolution and mediation psychology.