I was fortunate enough to attend a Horse Race in Hong Kong.  I heard about the race from a friend I met while travelling who just so happened to be a horse jockey in the United States. We were both eager to see what proved to be an exhilarating cultural experience. 

Apparently, horse racing in Hong Kong is a really big deal!  Alongside the feverish excitement of the crowd, everyone paid close attention to the horses, the jockeys, the statistics, every little detail.  Everyone carefully placed their bets on the computerised on-course betting terminals scattered about the huge arena.  As the race began, everyone sat in the hot sun with their umbrellas, fixated on the race.  Each person hoping for the big win.

Gambling. Some people like the rush.  Others like the simple thrill of winning.  Whether it’s at the slot machines, with cards, on the stock market, at our job, or in our personal life, we all take risks.   We assess our situation and surrounding and occasionally take risks or gambles.  Other times, we sit back and make a more calculated rational choice. 

But are we really capable of perceiving and interpreting the vast amount of information that should go into thoughtful decision making and careful assessment of risk? 

We Don’t Pay that Much Attention

Christopher Chabris and Daniele Simons author the book “The Invisible Gorilla: And Other Ways Our Intuitions Deceive Us.”  The book gets its title from a concept which recently became popular as a video on the internet.  The video depicts basketball players on a full size court.  The audience is asked to count the number of passes between the teammates.  At the end of the 60 second clip, most viewers can answer correctly the number of passes.  However, nearly everyone misses the life size gorilla mascot that parades his way across the basketball court.  The simple truth is that we humans don’t pay that much attention to our reality.

The Expert is Not Always Right

One of the everyday illusions that Chabris and Simons cite is that the expert is always rights.  We as humans are blinded to those with authority—the nice suit, the lab coat, the judicial robe. We revere those we perceive as experts. We defer to authority figures and are obsessed with those we perceive as having great knowledge.  We assume that the expert gets its right—all the time.

Our Memories Often Fail

Another illusion is that humans remember everything correctly.  Watching children, one quickly realizes just how different two people’s recollection of the same even can be: The vase breaks. He tells his teacher, “She broke the vase.” She says, “No, He broke the vase.”  And sometimes, they both think they are telling the truth.  Yet, somehow, when we grow up, we forget that there are always two sides to every story.  Our human brains selectively recall only certain things.  Our emotions shield us from seeing the whole picture.

Clearly, humans are flawed.   We don’t pay attention.  Our memories often fail us.  We rely on experts often blindly, without truly ascertaining the appropriate evidence needed to make a sound decision. In reality, these flaws won’t seriously impact our day-to-day life.  The “small gambles” and the “little risks” we take in our personal and professional life won’t suffer too much from the occasional oversight due to faulty memory or not paying attention. But for those who find themselves in Court fighting a legal battle, these human flaws will inevitably play a role in the outcome of the litigation.

Introducing the third party neutral, mediator, or trusted outsider.    The mediator can help the parties realize how their own human flaws have prevented settlement.  For example, a client’s understanding of the case is inevitably based on the lawyers, the expert witnesses, and the judge.  A mediator is uniquely positioned to help the parties really think about what information they are relying on to make decisions about settlement.  Moreover, by the time a mediator hears a dispute, there are two sides to the story. When this happens, parties often get frustrated and accuse the other side of lying.  In reality, people simply don’t pay attention to every detail and memories sometimes fail. Each party has told their side of the story so many times that there is bound to be some inaccuracies in both.  For example, the Plaintiff is forced to tell his or her story over and over again.  The story is first discussed at the dinner table or over drinks with friends or family.  Eventually, the story is told to a lawyer in a conference room.  It is then repeated over and over again for case strategy, discovery, depositions, and trial preparation purposes. The mediator can step in and at least help the parties come to a basic understanding that the human mind is imperfect—and that perhaps the party isn’t necessarily lying.  Blaming inaccuracies in one’s own memory may also be a way to save face, allowing the parties to move closer to settlement.

We gamble with our fate every day.   But litigation has severe consequences, and there is a lot on the line.  While it isn’t guaranteed that you will win the litigation “race,” it is guaranteed that you will endure a great deal of sacrifice if the battle is fought in the litigation arena.   Recognizing our human flaws is helpful in moving parties away from an intractable position towards meaningful settlement—towards the true “finish line.”

Mikita is the Editor-in-Chief of ADR Times. As an associate at Northrup Schlueter LLC, she focuses predominantly on litigation and arbitration in the field of construction insurance defense. She received her Juris Doctorate at Pepperdine and a Masters in Dispute Resolution from the Straus Institute. Mikita has been published in the Pepperdine Dispute Resolution Law Journal and worked at the Centre for Effective Dispute Resolution in London. As an avid traveler, she continues to explore various dispute resolution issues and how they vary from region to region.