Those who study cognitive bias seem to think so. They disagree on whether we can do much about it.[1] The question and the answers are at the heart of mediation.


Most of us have seen this before, the Muller-Lyer illusion. Because of the direction of the arrows at the ends of the lines, the bottom segment appears shorter than top segment, even though they are the same length. And even after the lines are confirmed to be the same length and the neurological basis of the illusion has been explained to us, we still perceive one line to be shorter than the other.

While familiarity with the illusion or academic training in logic and reasoning can be a cue not to trust our brain’s hard-wired response to it, it is not so easy in the real world. In the midst of a lawsuit or a divorce, when we are forced to deal with complicated and fast moving situations that require critical thinking and have serious consequences if we make the wrong decision, it can be almost impossible.


Even common sense approaches to problems often produce errors in judgment and self-defeating actions. There are smarter and less smart ways of solving them. People’s reasoning, when it is compared to scientific, statistical and logical standards, reveals large classes of decision making to be systematically mistaken. Inferences frequently violate principles of statistics, economics, logic and basic methodology. See Nisbett, Richard E.(2015) Mindware: Critical Thinking for the Information Age, Farrar, Straus and Giroux New York, N.Y. also,

Experience has convinced me that critical thinking does not come naturally to many people and that it is not a skill that many have a strong interest in developing. To make matters worse, anxiety, stress, anger and fear that plague the people involved in lawsuits, further diminishes their ability to avoid the consequences of flawed reasoning.

This is the stark challenge facing mediators in many cases; figuring out ways to point out to people their fractured logic, unreason, cognitive illusions, ineffective communication skills, etc. while revealing to them possible adjustments in their thinking that might help get them what they want (even when they are not at all clear what that is). All of this is done in ways that make any insights they gain seem to be their own and without making them feel like they are being scolded or told what to do.

Fortunately for me, I have always been fascinated by the question why do people behave as they do? Mediating, while daunting, frustrating and sometimes unsuccessful, has always been worth the effort. It is the most interesting and rewarding work I have ever done.

[1] Yagoda, Ben “Your Lying Mind.” The Atlantic September, 2018: 72-80.