On September 6, 1916, the 64th Congress of the United States passed legislation declaring that the Supreme Court shall hold one term annually, “commencing on the first Monday in October.” Today, for the second time in the past three years, the Court begins its term with less than its full complement of nine justices because the Senate has not yet completed the confirmation process concerning the nomination of Judge Brett Kavanaugh to fill the vacancy created by the retirement of Justice Anthony Kennedy.

Last Friday, after hearing from Dr. Christine Blasey Ford and Judge Kavanaugh the day before, the Senate Judiciary Committee completed its confirmation hearing and referred the nomination of Judge Kavanaugh to the full Senate, pending completion of a further investigation by the FBI. Ironically, the confirmation hearing provided a case study in “confirmation bias” — the tendency to seek and give greater weight to information which supports one’s existing beliefs and theories, while ignoring or undervaluing information which tends to refute those same beliefs and theories. “Confirmation bias” also includes the tendency to interpret new information in ways which support, rather than refute, one’s existing beliefs or theories.

“Confirmation bias” may explain, in part, the following: (1) why Democratic members of the Committee seemed more likely to focus their remarks on the credibility of Dr. Ford’s testimony, whereas Republican members of the Committee seemed more likely to focus their remarks on the timing of her accusations; (2) why Democratic members directed much of their attention toward new allegations that had recently surfaced, whereas Republican members directed much of their attention to the absence of prior claims; (3) why Democratic members argued for a further investigation by the FBI, whereas Republican members argued that the FBI had already conducted six prior investigations; (4) why Democratic members claimed that Republican members were motivated by a desire to rush the process, whereas Republican members claimed that Democratic members were motivated by a desire to delay the process; (5) why Democratic members reached the conclusion that Judge Kavanaugh displayed a lack of judicial temperament, whereas Republican members concluded the anger he displayed was fully warranted, given the nature of the accusations.

Of course, “confirmation bias” is not limited to Senate confirmation hearings. This past week, “confirmation bias” reared its ugly head on social media. Before Dr. Ford and Judge Kavanaugh had even testified, each was being vilified as a “liar” by the other side’s supporters based on nothing more than news reports. On more than one occasion I found myself engaging in Facebook discussions — occasionally with one or more of you, lol! — urging restraint and gently reminding everyone that one thing we expect and require of jurors is that they keep an open mind until they have heard all of the evidence.

For obvious reasons, “confirmation bias” can also infect the mediation process. When opposing counsel consider the significance of identical evidence, they often reach contrary conclusions, based — in large part — on “confirmation bias.” For example, when a plaintiff treats modestly for his or her injuries, counsel for defendant may interpret that fact as evidence the plaintiff was not really hurt, whereas counsel for plaintiff is likely to view that fact as proof of plaintiff’s credibility. When sub rosa investigation or social media posts reveal plaintiff engaging in physical activity that is inconsistent with his or her alleged injuries, counsel for defendant is likely to view the evidence as damning proof that plaintiff has exaggerated his or her claims, whereas counsel for plaintiff is likely to view it as having captured only a snapshot of one day in plaintiff’s life, failing to reveal whether plaintiff may have paid a price the next day, by missing work and being confined to bed. When defendant fails to produce videotape of a slip and fall in a grocery, counsel for plaintiff is likely to assume the videotape was deliberately destroyed, whereas counsel for defendant is likely to assume there are less sinister explanations.

“Confirmation bias” can give rise to false confidence, leading you to believe your position is stronger than it may actually be, but there are ways to combat and overcome “confirmation bias.” First, make every effort to consider all of the relevant evidence logically, rather than emotionally. Second, always consider relevant evidence from the other side’s point of view, asking yourself whether there are alternative ways to interpret the same evidence that may also be reasonable. Third, maintain a healthy dose of skepticism with respect to your own beliefs and theories. Fourth, challenge yourself to keep an open mind by constantly asking yourself “what if” and making room for the possibility that the other side might just be right.

Take it from an unbiased observer — your client will be better served in mediation when you don’t fall prey to “confirmation bias.”

As always, I would be pleased to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.

Best regards . . .

Floyd J. Siegal

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