Giving advice and Avoiding the “Truth Bias”
Whenever I go to the doctor’s office I hope that I can trust what he or she tells me about my health. … Don’t we all? I mean, unless I’m going to spend the time and money to go out and get myself an M.D., I am forever going to rely on the expertise of medical professionals to tell me whether my “’X’ levels are too high,” my “’Y’ rates are low,” etc. And I’ll take my doctor’s word for it. … Because I have to. I respect the authority of their education and experience in areas where I know I have little.
And my reaction is common: Humans tend to trust others when they are acutely aware of the difference between their own expertise and what they perceive to be another’s expertise. This probably isn’t a shocking piece of news, but it has important implications for how and when we as mediators should exercise our “authority” throughout the mediation process, especially when dealing with clients or counsel new to the process, or who otherwise might be impressionable. And authority derives from many things: From the “role” we play in a situation, to our perceived age and experience, to the way we present (dress, walk, talk, gesticulate)…there are many sources of “authority” that can impact how clients and counsel perceive our “expertise” in the room. And all of these factors are crucial elements if one is going to successfully guide parties through the jigsaw puzzle of myriad offers that typically entail the negotiation process.
ADR professionals often write about the various “biases” that can affect the mediation process - anchoring, reactive devaluation, and so forth. But what I have almost never seen discussed is what I like to call the “truth bias” – the tendency we as humans have to “believe” those we perceive to have “authority” when we are told something we might otherwise question. And this bias can hurt us if we’re not careful. … Here’s a famous example: Remember the controversial experiment conducted by Professor Stanley Milgram at Yale in the early 1960’s? “I vaguely remember,” you say? For those who could use a primer, Prof. Milgram ran an experiment where subjects were led to believe that their task was to send increasingly strong levels of electric shock to other “participants” (who were, in fact, accompli to the experimenter and not being shocked, although prerecorded “screams” and pounding on walls was made to convince subjects otherwise). What Professor Milgram essentially found was that when someone in a lab coat who was in the “role” of being “in charge” told someone to do something they ordinarily would question, most participants bent to the influence of the “authority” and made decisions they otherwise never would – e.g., they kept “shocking” another human being despite cries of agony. Of course, I’m not saying that anyone is going to be sending electrical pulses to anyone else in mediation: The point instead is that when someone is told to do something by someone in an “authority” role the truth bias can profoundly influence what perceive see as being “acceptable,” “correct,” or “true.”
Moreover, the truth bias grows stronger as the gap grows between our perceptions of our “authority” and the “authority” of the person telling us the information. I love baseball, so I’m going to use it as my example…. I played baseball for some time as a younger man. If a professional baseball player had told me that to hit a ball harder I needed to adjust my grip on the bat…I would probably have believed him. And further I would have believed him a heck of a lot more readily than if a non-athlete friend or relative told me the same thing. This may seem intuitive, but let’s break it down: My perception was that the ballplayer has more experience –and thus, “authority,” than me– when it came to hitting a ball. Contrast that to my perception that there was no difference between the “authority” that say, my sister would have in telling me how to hit a ball (in fact, I would have assumed that I had more authority than her…sorry sis!). If my sister tried to give me advice I would have probably politely smiled, thanked her, and then not applied what she said. When we’re in mediation, especially with clients or counsel who have little experience with the process, we are the professional and they the amateur … just like in the baseball analogy.
Not only does the impact of truth bias become stronger with larger gaps between the perceived experience levels of individuals, it also strengthens dependent upon the rapport between people. For instance, the rapport between mediators and parties. Think about it – are you more likely to trust someone you despise, or someone who’s company you enjoy? It is natural for us to trust more those with whom we have rapport. This is interdependent with the perceived “authority” of that person, but the two variables work in tandem. It’s helpful to think of it as a simple function, which I like to call the “Authority-Rapport Axes,” as shown below:
There have been many social cognitive psychology studies done on what exactly “comprises” trust, what goes into building trust, etc.: my model is a combination of some of these theories, and observations from my own experience as a mediator. Put simply, the higher the combination of perceived authority and rapport that a person has for someone, the more likely they are to trust that individual (which here could be represented by the volume of the area under the point of “trust” on the diagram). Put as an equation: Perceived Authority * Perceived Rapport = Potential Trust Bias. That is, both authority and rapport are multiplicative…they enhance one-another. Thus, someone having more “rapport” with another can make any perceived “authority” have all the more potency, and vice versa. And this is very much an oversimplification. For instance, here I’m generalizing “rapport” here to also mean “strength of relationship” between two people, which more precisely can play a role in the trust between them. I’m also ignoring factors such as previous positive or negative experiences between people, how the relationship between the two variables might diminish at higher “levels” of either authority or rapport, and other factors. But I present the model here as relevant when trying to understand the perspective of the person with “less” perceived authority in a conversation, as it is they whom the trust bias affects.
Which leads me to how we as mediators can apply our knowledge of the “truth bias” in mediation. … Be careful! In mediation, both our authority and rapport are usually very high, and the reasons why go back to my descriptions of what builds “authority” and “trust.” Our “roles” as mediators are to be neutral “guides,” but guides with inherent power over the dynamics of proceedings. No matter how facilitative our style, no matter how self-effacing we may attempt to be, we’re still in the driver’s seat. Further, it is part of our task to build rapport … rapport is one of the basic building-blocks of guiding a successful mediation process. Whether or not we are aware of it, the combination of our role and task as mediators quickly builds authority throughout the mediation. This means that there is potential for the “truth bias” to play a powerful role in some parties’ minds. Moreover, because perceived authority is partially a function of the difference between the perceived “experience” levels of individuals, the truth bias effect is exacerbated when a client is unrepresented, or when counsel or client are inexperienced with mediation.
This dynamic presents an important ethical issue, because while it is not our role as mediators to give legal advice, many mediators – including myself – find that there are many instances where it is our role to give our opinion on facts, potential settlements, etc. as parties make considered choices about their options. It can already be a fine line to walk when giving our own opinion of a matter. Especially when dealing with unrepresented clients, it can be very important to make sure that what perceptions of rapport and authority we have developed are carefully managed so that parties are not inadvertently led towards suggestions which they ought to reconsider. It is our responsibility to be cognizant of the truth bias’s effects in parties’ minds. When parties ask my opinion, or when I feel my opinion might be helpful, I try to exercise what wisdom I have before I speak. Because I follow the same mental processes every time I give advice, I have made a simple pneumonic device when before and while I give advice: “WISDOM.”
Wait - to let parties vet what options they have, before presenting more alternatives. I see it as imperative that parties have full opportunity to consider the options available to them – on their own terms – before I give advice. This may seem counterintuitive to the traditional mediation maxims that one of our roles is to “create options,” and “expand the [figurative] pie,” but it isn’t. My goal is to help parties think creatively about alternative solutions, but I do so while being cognizant of the influence of the options I present. Parties know themselves and their positions better than we ever will; but, if as mediators we’re not careful, and are too evaluative too quickly, our authority and rapport can lead parties to think that our proposed solutions are superior to their own ideas when in fact they are not. … Therefore, it is with rare exception that I deviate from this first step of simply “waiting.” Sometimes it is apparent that more options need to be on the table in order for parties to move forward, even from initial negotiations. Otherwise, my initial instinct towards is to “wait,” and see what parties can do in developing options on their own.
Interpretation – When I feel it may be useful for me to suggest something or offer my perspective, my next mental question is: “How will these parties interpret my suggestion?” Important considerations here include my judgment of whether or not client or counsel might “too-readily” accept my suggestion as “fair” or “correct,” again especially if there are no lawyers involved and/or if any individuals have not been through mediation or a litigated case. In most professional mediations counsel on both sides will have experience with mediation; however, in all mediations I am cognizant of the truth bias’s potential effects on parties, and will try to anticipate how what I say may be interpreted.
Significance – If I conclude that parties are likely going to interpret my suggestions in a healthy manner, I must next myself: “Is what I’m suggesting a significant contribution to the settlement dialogue. If parties have not asked me for my advice, I need to weigh whether or not it’s worth taking the risk of suggesting something that a party may latch onto for lack of consensus on other options. ?” But, parties often do ask for my opinion – especially when my perceived authority and perceived rapport are high – which is why when that I am asked for my suggestion I go back to “Interpretation” ask myself, “Are the parties asking because they simply would like my opinion, or are they asking because they are turning to me for a definitive solution?” If I feel that a party may be seeking more than simply my input as someone who might shed insight, and that the truth bias may indeed come into play, I will either 1) redirect their question into a brainstorming with them to think of alternatives, or 2) ask whether or not a mediator’s agreement may be in order. If, however, I feel that offering some suggestions or insight may be in order, next I…
Disclaim the opinion – Whenever I give my two cents regarding issues or dynamics or potential future paths of a mediation or case, I always disclaim literally that, “this is simply my opinion, not a prediction of the future, not my interpretation of the laws or case histories involved, and certainly not anything to be interpreted in lieu of legal advice from your counsel.” I say this even if the parties have been through mediations before. I say this even if I’ve worked with counsel numerous times before. There are no exceptions to when I disclaim my opinion. The disclaimer is not just about informing the parties of how to interpret what I say, it’s also about making sure that I communicate the role of any opinion I give as a matter of ethical policy. This isn’t to say that I will abruptly stop the flow of conversation, say a disclaimer, then awkwardly continue: I’ll usually use a very casual tone when I disclaim my opinion; I’ll smile as I do so, and then I’ll continue on to offer my input.
Opinion – Up until this point I have mentally assessed whether and how I might advise the party. All of these steps may seem a bit tedious, but they’re important, and most of these mental processes flow easily and seamlessly once practiced a few times. It’s all very quick and fluid, but I always remember my acronym “WISDOM” so that I know I have considered how my opinion might impact the party who is receiving it. … But, even after I’ve given my opinion on whatever issue or facts the parties and I are discussing, I’m not done. There’s one final, very important step.
Monitor – We’re all human – sometimes it is impossible for us to know ahead of time how a party or counsel might interpret what opinions we offer. That’s why even after I give my suggestions I am sure to “monitor” the interpretations of parties and counsel, to the best of my ability. This isn’t complicated, but again it’s important: I look to see whether and how parties might give “weight” to what I’ve said while talking to me and while talking to their attorneys; concomitantly, I monitor the attorney’s perspective on my advice. If, for instance, I give a suggestion and suddenly the client keeps coming back to it again and again while completely dropping previous offers of settlement, I will try to tease out whether or not that party is referencing my suggestion because of a potential truth bias, because of fatigue at other potential solutions not having worked, or because they genuinely think my suggestion is the best available to them. If I think some the truth bias might be involved, I may suggest off-hand a previous offer that had been discussed, or I may help the client and counsel to think through the “pros and cons” of my suggestion relative to other potential solutions. By having parties lay out the pros and cons of my suggestions, I can help them separate my suggestion from any potential biases in their interpretation, and to view my suggestions more objectively. The goal is to help parties work through their thinking in the way that is most efficacious for them. And a final point … I am not the client – so it’s impossible for me to really know the level of objectivity they might have when evaluating my words – but I can certainly try to parcel out verbal and non-verbal clues that might suggest their thinking.