Recently, I conducted a mediation involving the purchase and sale of a used vehicle several years ago. The consumer was suing the used car dealer for its alleged failure to disclose certain information about the used vehicle prior to the sale.

 I listened to each party's story including all of the salient facts as each party recalled them, and then summarized to that party what I just heard to make sure I understand it all correctly. As often happens, the factual recitations greatly differed; after listening to each side and comparing what each told me, I wondered if they were talking about the same transaction. When I gently suggested to each side, that the other party's version was completely different, the response I received was that the other side was lying. When I tried to suggest to that party that perhaps her memory was less than completely accurate, I was totally rebuffed; each side was adamant that her own memory was completely accurate (Indeed, the facts are the facts as one side was quick to tell me!) and the other was lying.

Recently, I finished reading The Invisible Gorilla (How Our Intuitions Deceive Us) by Christopher Chabris and Daniel Simons (Broadway Paperbacks, 2009). In chapter 2, they discuss the "illusion of memory: the disconnect between how we think memory works and how it actually works."(emphasis original.) (Id. at 45.) That is, there is "... a basic contrast between what we think we remember and what we actually remember....The illusion of memory happens when what we remember is different from what we think we remember." (Id. at 46.)

Why does this occur? As the authors explain, "Memory depends on what actually happened and on how we made sense of what happened." (Id. at 47.) In short:

When we perceive something, we extract the meaning from what we see (or hear, or smell...) rather than encode everything in perfect detail. ... [M]emory doesn't store everything we perceive, but instead takes what we have seen or heard and associates it with what we already know. These associations help us to discern what is important and to recall details about what we've seen. They provide "retrieval cues" that make our memories more fluent. In most cases, such cues are helpful. But these associations can also lead us astray, precisely because they lead to an inflated sense of the precision of memory. We cannot easily distinguish between what we recall verbatim and what we construct based on association and knowledge....

.... [P]eople often remember what they expect to remember. They make sense of a scene, and that interpretation colors-even determines- what they remember about it.

.... We cannot play back our memories like a DVD- each time we recall a memory, we integrate whatever details we do remember with our expectations for what we should remember. (Id. at 48, 49.)

It is for this reason that two people can witness the same event, yet explain what they saw so differently that the listener wonders if each was, indeed, witnessing the same event. What each has done is to color what they just witnessed with their own experiences so that the story takes on a life of its own, so to speak.

...And the toughest thing is to try to convince people that their memory is NOT as accurate as they think it is; that what they swear that they recall seeing, may not have actually happened. Or, that indeed, what they swear happened to them, may have actually happened to someone else, and they have adopted it as their own memory or in the authors' words a failure of source memory has occurred. (emphasis original.) (Id. at 62-3.) Without realizing it, we adopt someone else's scenario as happening to us, and thus it becomes part of our own memories which we will swear happened to us!

So, the next time you think someone may be out and out lying to you, take a moment to wonder if it is simply the illusion of memory at work.

By Phyllis G. Pollack

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Phyllis G. Pollack is a full time neutral in Los Angeles where, as President of PGP Mediation, she focuses on business, real estate, contract and “lemon law” disputes. She may be reached at Phone: 213-630-8810 / phyllis@pgpmediation.com / Website: www.pgpmediation.com