The Fundamental Attribution Error in Mediation

Have you ever had someone blame you for something over which you had absolutely no control?

If you’ve ever been late to a meeting, been framed by a sibling growing up, or otherwise haven’t lived under a rock your entire life, you know what I’m talking about. Why do people do this? Situations like these are due to a powerful psychological phenomenon called the Fundamental Attribution Error (FAE), and it pops up all the time in everyday life. While the FAE entails many things, the salient point here is that it describes human beings’ tendency to assume that someone’s behaviour – especially when we disagree with or are negatively affected by that behaviour – is due to that person’s personality or disposition, and not due to external factors or situations beyond their control. For example, say you’re late for a first date and the other person assumes that your tardiness is because you just don’t care enough, or because you lack punctuality. Further imagine that, in reality, you got stuck behind a huge accident on the freeway – you had absolutely no control over the situation – and your cell phone died unexpectedly so you couldn’t call. By the time you arrive to the restaurant, your date has made a judgment – indeed, they may have committed a FAE without knowing it. Your date has assumed you had control over the situation when you did not. It is important to note here that when someone assumes that you can control events they tend to become more offended, because they usually also assume that you didn’t personally care about or respect them. This scenario also exemplifies why first impressions are so psychologically important: When people have little information about others, they assume things based on initial words and actions. If your initial actions do not accurately reflect your personality or character, they will likely commit a FAE in assessing you.

The FAE has huge implications for not only our everyday lives, but also for many sources of conflict between mediating parties. 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” from 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. And the story is no different in mediation: By the time a case crosses your desk as a mediator, more likely than not at least one of the parties (often, at minimum, 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! But as many experienced mediators know all too well, often the truth of a situation is secondarily important to how parties perceive it. Many times, parties will make up stories for themselves regarding the “fault” of a situation, and use their judgment of fault in order to legitimize their not reaching out to the other side, their unwillingness to compromise, and thus their determination to perpetuate the conflict. There are a lot of reasons why parties do this, and one very potent enabler of this process is the FAE parties apply when thinking about other parties’ actions.

I believe that it is incumbent upon conflict resolution professionals to be aware of and able to react to FAE thinking when we see it, and to understand that this kind of thinking produces assumptions and blame that can keep parties from ever considering settlement in the first place. For instance, perhaps a subcontractor did not meet a deadline but could not do so because the subcontractor’s main supplier delivered needed goods too late. If the contractor does not take the time to ask why the contract terms were not met, and no communication occurs, they are likely going to assume that the subcontractor had full control over the situation and thus that it was their fault. Sometimes, parties assume the other party “harmed” them and could have prevented it, even when they could not. As mediators we know too well that facts are often muddled, convoluted, incredibly complex, and laced with emotional biases – and therein lies the conundrum: When parties can possibly blame other parties for a negative experience or outcome, they tend to do so because the FAE leads us to assume that someone was always in control of events. All too often, blame lies somewhere in the middle of the dispute, and in mediations where parties might otherwise have an opportunity to openly communicate with one another and come to an understanding, all dialogue is instead focused on “blame” (i.e., liability) and thus what money must exchange hands for the dispute to end. 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 a previous context by which to judge the validity of their FAE, they are more likely to commit a FAE 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, but there are instances where it is nonetheless beneficial for parties to be guided in fully examining the potential FAE’s they may have committed. It’s always better for a client to examine their stance in mediation than to enter trial and find out the hard way that there are perspectives they haven’t considered. Even more than saving my clients the time and money of trial, often full resolution is only possible by helping clients examine their thinking, re-assess their situation, and communicate with the other side as part of the process. In order to better 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.”


The ‘F’ in FAE

First, understand the Facts of the case from both sides, as best you can. Inexperienced neutrals might think this seems elementary, but experienced practitioners know full well that gaining a complete understanding of a case is almost always trickier than it seems. Even though we are neutrals, we certainly have the opportunity to help our clients assess their conflict in ways they may not have previously. But this is only possible if we carefully gain a sense for the case from all sides’ perspectives, and if we are consciously aware that the perspectives parties share with us are inherently their version of what has occurred. Because our clients are human, they naturally will tend to perceive conflict through the lenses of various cognitive biases – including the FAE. Therefore, it is often the missing and contradictory pieces of information that can help us identify points where the parties may have made incorrect assumptions about one another’s behaviour. Put another way, if our mediation cases were a jigsaw puzzle, it is only by carefully placing each piece in order to see the gaps or overlapping pieces that we can figure out what questions we may need to ask to help our clients gain clarity or re-evaluate their assumptions about other parties’ intentions.

I always have my “feelers” out for potentially relevant, alternative “interpretations” of the dispute by either side. I try to understand what motivations my clients might have for perceiving the conflict in particular ways. Do they gain any emotional strength or legitimization of their actions from their perception? 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, but this doesn’t preclude the possibility that they have committed one or several FAE’s you may consider addressing.


The ‘A’ in FAE

Which brings me to the second step of the process. 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 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. There are often many interpersonal and emotional issues we as mediators might address with clients, but we are not therapists: There is sometimes an unclear line between our task as conflict resolvers and that of a mental health professional helping clients process their emotions and improve their relationships. My general rule is to ask my clients directly whether or not they think addressing particular misunderstandings or issues would help them in the conflict. Alternatively, when I think my client may be experiencing a FAE (or any other cognitive bias, misinterpretation, or misunderstanding) that they do not see as important to address, I will ask them for permission before giving my thoughts as to how the FAE might be driving their conflict. For a party’s FAE to be important enough to address, it does not necessarily have to be about something that would lead to “stalemate,” but instead might simply be about an issue that is nonetheless important to the case or that might determine the outcome of even one significant aspect of the settlement.

The best way to address a FAE, I’ve found, is to help a party think through any assumptions they may have made regarding others’ actions. I ask questions from the standpoint that I am seeking clarification on the potentially ambiguous issues involved. For instance:

Is it possible there is another explanation for what the other party did?

Can you help me understand what might have motivated the other party to act in this way?

How might the other party explain their actions?

Questions such as these help parties to think through their assumptions, consider alternative explanations, and thus begin to reframe the conflict stories they have built in their minds. These lines of questioning can be important elements of a mediator’s work, but they also present a delicate process of calling into question assumptions that might bolster stories very emotionally important to our clients.


The ‘E’ in FAE

Precisely because this process can be so sensitive, it is always important to Empathize with our clients when questioning their assumptions. Simply put, there is no “right” or seamless way to help a party think through their assumptions, only methods you can use to ensure that parties know you are seeking to help both sides find resolution from a neutral stance. Questions causing reconsideration of our clients’ and other parties’ actions can be important for clients to hear, but are all potentially interpreted 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 FAE’s and other assumptions that may serve to undergird their sense of identity, legitimacy, or power in a conflict. Communicate that you are “seeking to ensure that we have thought through all possible alternatives,” and iterate your role as a neutral both on “no one’s side,” but also on “everyone’s side,” if you are comfortable taking that stance.

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 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, or that may affect their long-term commitment to 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, one of our roles as mediator is to understand and interact with our clients’ potential biases and motivations as we help them navigate their conflict. 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 effectively 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.