Negotiators planning to engage in conflict resolution in a personal or business disputes should be aware of cognitive biases in negotiation, particularly when your dispute is being decided by a judge. Before doing so, you should consider carefully what psychologists, political scientists, and legal scholars have learned about judges from negotiation research and social science: their decisions are prone to error and cognitive bias.
Cognitive Biases in Negotiation and Three “Blinders” to Rational Decision Making
Obviously making a fair judicial ruling can be difficult when the law is murky or the facts are contested. But even when the law is clear and the relevant facts have been fully developed, judges can still have trouble accurately applying the governing principles. Specifically, they face three types of “blinders” – attitudinal, information, and cognitive – that are largely unacknowledged by the legal system.
Because judges are susceptible to misjudging, your outcome in court may not be as fair or predictable as you might expect.
If the expense and hassle of a lawsuit aren’t enough, the research on misjudging provides yet another reason for you to turn to in negotiation to resolve your disputes.
Ideology and Misjudging: Negotiation Strategies and Bargaining Techniques for Overcoming Common Negotiation Mistakes Caused by Cognitive Biases in Negotiation
Whether elected or appointed, judges come to the bench with political views – attitudes or predispositions that can lead them to rule in ways consistent with their underlying ideology. These attitudinal blinders can bias their decisions.
In their book Politics and Judgment in Federal District Courts (University Press of Kansas, 1996), Robert Carp and C.K. Rowland assessed the impact of attitudinal blinders on trial judges.
Specifically, the legal scholars assembled a database of more than 45,000 district court rulings issued over more than half a century (1933-1987) involving more than 1,500 judges. They discovered that Democratic appointees ruled in the liberal direction 48% of the time, and Republican appointees ruled in the liberal direction 39% of the time.
When they compared appointees of particular presidents, they found the gulf was even wider; for example, Johnson and Carter’s appointees reached liberal decisions in 52% and 53% of their respective cases, and Reagan and George H.W. Bush appointees reached liberal decisions in only 36% and 33% of their respective cases.
Overall, in instances where judges have discretion and where the issues in a case have a clear political dimension, such as employment discrimination cases, political science research suggests that attitudinal blinders can distort judicial decision making.
How have cognitive biases affected the way you have handled past negotiations? Have you made any of these common negotiation mistakes? Share your story in the comments.
Adapted from “Blind Justice? Think Twice Before Going to Court” in the April 2007 issue of the Negotiation newsletter.
Originally published on June 9, 2013.