Could Mediation Remove the Blind Spot?

Full disclosure: I recently started mediating franchise disagreements and other commercial disputes (see my post announcing my mediation services). So far so good...

Because of this new dimension to my practice, I stay alert to articles and blogs discussing litigation and settlement, especially the psychology of the process. One blog is the Persuasive Litigator written by Dr. Ken Broda-Bahm and his team. Last week's article was "Look for the Dunning-Kruger Effect."

The main finding of the Dunning-Kruger study (done in 1999) - when it comes to self-assessing one's own skills, competent individuals were able to accurately assess their own relative ranking, but incompetent people consistently overestimated their's - did not draw my attention as much as an analogous connection mentioned: that attorneys can be poor predictors of the outcome of their own cases.They have a blind spot.

While surely this does not apply to my ability, the article makes the case:

Cases fail to settle, or settle at an inappropriately late hour, often due to the parties' failure to accurately assess their case. The attorneys, the research supports, can also be surprisingly poor predictors of their own case's prospects. The advocate's role in seeing the best in their own case, the "partisan distortion," can serve as a barrier to settlement, as well as a barrier to the kinds of honest assessment that sets the stage for the best strategy in trial. Advocates' best bet is to obtain as many neutral, or neutralish assessments as possible -- including from mock jurors -- in order to get a realistic grip on the case.

Mock juries are good if you can afford one (none of my clients have been able to); but when I have my litigator hat on, I know that I am a partisan, biased in favor of my client's case. Call it human nature, borne out by the research. Some mediators have helped me and my clients come down to earth, to better assess our chances.

While mediation may not settle your case, it may help you and your client "get a realistic grip on the case." In the franchise arena, where many options are available to settle a case, mediation may solve your dispute or open your eyes to a better strategy. And, the synergistic mediation process may lead to an outcome not previously considered. This just occurred in a mediation I conducted, where a party's creative suggestion broke the logjam.

Remove the blind spot.