Walking a Minute in Your Adversary’s Shoes: Addressing The Issue of “Naïve Realism” at Mediation

Tue, Dec 31st, 2024 | by Miles Mediation and Arbitration | Article | Social Share

By Glenn Hutchison and David Matthews

Conflict occurs when two parties have differing perspectives on a matter of importance and each of them believes that his or her own view is correct. As research has shown, humans typically believe they are viewing the relevant information and events objectively and accurately. But the truth is that our brains actively construct our interpretation, or perspective, and this constructive process is heavily influenced/biased by our desires, or interests, even when we are genuinely attempting to be objective.

Because people are so unaware of these unconscious processes, they often fail to distinguish between their ideas about the relevant facts/events and the facts/events themselves. Researchers refer to this phenomenon as “naïve realism.”

Some legal disputes must be litigated to conclusion. However, those situations are the exception and not the rule; the vast majority of cases can be settled. Mediation is the most effective method to bring resolution to all types of conflict even when the parties are having a dispute that has been aggravated by the biased perspectives that each party has developed through “naïve realism.” With that in mind, let’s take a closer look how conflict occurs, and how addressing naïve realism at mediation can help encourage resolution.

The Seeds of Conflict

Conflict between parties may arise from a single event or a series of events. Once the parties are at odds with each other, their respective perspectives become more self-serving. The parties to the conflict almost never realize that their differing perspectives are constantly evolving. Researchers have shown that our hidden cognitive processes automatically and continuously monitor information and, as suggested a moment ago, massage it to make it fit our preferred perspective.

Once a particular point of view/interpretation takes hold, a person’s brain automatically and continuously assesses new information, determining whether it is consistent with our preexisting beliefs and perspective. Stated differently, our preexisting beliefs and memories become more entrenched over time – we readily adopt and assimilate information consistent with our perspective. At the same time, information which is not consistent with our prior beliefs is not easily understood, which makes it easy to forget or reject.

Litigation conflict is often the result of two or more parties who strongly disagree with each other while each believing that he or she is the party viewing events objectively and accurately. Even when one party realizes that it may have more responsibility for the source of the conflict, that party may well believe that it is acting more “fair and reasonably” in handling the situation and possibly looking for resolution.

Addressing these Thought Processes at Mediation

Due to naïve realism and our unconscious biases, it’s normal for each party to be attached to his or her own views, even to the point that it’s difficult for the party to take the other party’s explanation seriously. With that in mind, what is the best way to address these powerful thought processes at mediation?

Therapists have endeavored for generations to understand conflict and develop techniques to facilitate dispute resolution. Their research and efforts suggest that it may be helpful to normalize the fact that the parties see things so differently. As a mediator, you might consider asking each party if they are emotionally invested in a particular outcome.  Presumably, the person will say “yes.” The mediator can note that this emotional investment makes it almost impossible for anyone to view the facts/conflict itself or any proposed resolutions objectively—i.e., the way an uninvolved observer would … and, yes, this is true for the person’s adversary as well.

Because this is difficult for many people to accept, at this point in the process, psychologists often ask each party to take a deep breath before explaining that little progress is likely to be made until both sides genuinely understand the other’s perspective.  Of course, you’ll have to emphasize that understanding the other person’s position does not mean that you agree with it. Couples therapists often ask spouses to listen to their partner’s explanation or point of view and then describe it until their partner is satisfied that he or she understands what is being communicated. Often, this requires many attempts for each spouse, with the other one explaining what the person got wrong or left out.

At meditation, you should reassure the party that all communications are confidential. If the party is compliant, then the mediator may lead the respective party into an exercise of envisioning the opposing party’s arguments. Once that conversation begins, the mediator should direct the participant so that he/she truly focuses on the strengths of the opposing party.

This technique can prove useful in breaking up mediation gridlock. If a party endeavors to explain the position of his or her adversary, psychologists have found that, in many cases, the person’s own position tends to soften, and he or she becomes more willing to compromise. Conducting this exercise in a confidential setting can help to unlock gridlock.

Long before a dispute arises, the respective parties have spent a great deal of time assimilating information which exclusively supports their respective beliefs. If each party engages in an exercise to see things from the other side, even momentarily, this can produce a dramatic effect moving towards compromise. In some cases, litigants may be unwilling to even try to understand the other side’s perspective, but this strategy should be considered as part of any experienced mediator’s arsenal.

*Originally published in the Daily Report and reprinted with permission.

About David Matthews

David Matthews has litigated commercial, business, construction, and many other types of cases for 30 years. He has practiced in state and federal courts across the country and typically has ongoing cases in multiple states. This enables him to have a much broader perspective on judges, juries, and likely outcomes of cases. David implements this knowledge in the mediation process by working with the parties and helping them to understand how a judge, jury, or arbitrator might view their position.