Doo-wop mediation

Starting in the late 40's and through the early 60's doo-wop became a staple of popular music. In 1959, Chess Records, out of Chicago, released "I Only Have Eyes For You" by the Flamingos. It's always been one of my favorites, with its sweet melody and romantic lyrics:

"My love must be a kind of blind love

I can't see anyone but you

Are the stars out tonight?

I don't know if it's cloudy or bright

I only have eyes for you, dear

The moon may be high

But I can't see a thing in the sky

I only have eyes for you

I don't know if we're in a garden

Or on a crowded avenue

You are here and so am I

Maybe millions of people go by

By they all disappear from view

And I only have eyes for you"

But, you might be asking yourself, what does this have to do with mediation? It turns out, a lot.

Look at the first two lines of the song "My love must be a blind love--I can't see anyone but you." What is the literal meaning of love is blind? When the love that a person has for someone or something is so powerful that the person is blind to all of the faults of that person or thing. This is the connection to mediation--the Flamingos could easily be describing parties to a lawsuit, parties who have fallen in love with their case and are blind to its faults. As the Flamingos put it: "I only have eyes for you."

In contemporary times we would describe this tendency to fall in love with a case and the temptation to be blind to its faults in neuro-scientific terms. The late Daniel Kahneman, winner of the Nobel Prize in Economics, and the world's leading expert on the concept of cognitive bias would describe it in various ways, but mostly in terms of "what I see is all there is." You can read about this theory in Kahneman's seminal work "Thinking Fast and Slow."

"What I see is all there is" is a form of confirmation bias, the tendency to find facts and arguments that support what we already believe, and to shun contrary facts and arguments. In the context of a lawsuit, "what I see is all there is" operates like this: a party to the dispute has a position (the plaintiff's position is "I've been harmed," the defense position is "I've been unfairly accused"). The parties see "evidence" (sometimes real, sometimes imaginary, sometimes admissible in court, oftentimes not). The parties hear arguments from their counsel. Because the parties start from their respective positions they focus only on the evidence and arguments that support their positions and disregard any evidence or argument to the contrary.

To illustrate, let's think about something that might have happened when the Flamingos had songs on the Billboard Top 40 chart. Imagine teenagers at a dance in the 1950's. Peter shows up with his steady girlfriend Margie. Margie thinks Peter is flawless, handsome, charming, attentive and even a great dancer. But Margie's friends and family have a different view of Peter. They think he's a shady character, a ne'er do well who will likely end up in trouble, maybe even prison. Margie can't hear the criticisms of her friends and family--she protests that they just "don't understand" Peter, or that they just can't see what a good person he really is. When they point out that Peter was arrested for shoplifting (in a record store!) Margie is dismissive---"It was all a mistake--he just forgot to pay for the record."

Margie sees Peter through the prism of her blind love and what she sees is perfect. In Kahneman's terms: What Margie sees is all there is. Margie can only see perfection and her cognitive bias drives her to believe that no imperfection exists. In short, if Peter looks perfect he is perfect.

This is what happens to litigants and it's one of the principal reasons why cases are difficult to settle in mediation. An example might a real estate non-disclosure case. The plaintiff claims that the seller misrepresented the size of the house in ads placed in the multiple listing service and on a printed "flyer" handed out at the open house. After the sale, the buyer applies for a building permit to remodel the house and discovers that it's substantially smaller than as represented. The plaintiff buyer screams: "I've been defrauded!"

The seller notes that the language in the MLS advertisement contains a disclaimer that the square footage is only an estimate, that the flyer contained the same disclaimer, that the flyer and MLS both included garage space as included in the total square footage and that the house inspector noted in his inspection report that overall the house seemed to him to be smaller than as advertised.

The sellers also notes that the buyer physically inspected the house multiple times, was "buying what she was seeing," was attracted to the house because of the view and the proximity to the buyer's office and was especially interested in the fact that the property had a fence and gate, e.g., that location and security were the real priorities and the actual square footage of the house was not important to the buyer.

The buyer says: "I paid $1,200 per square foot for this hour and it's missing 500 square feet, and you owe me $600,000." "It's very simple, you lied to me and you owe me the money."

What happens when the buyer is confronted with the contrary evidence and arguments? The buyer is unable to see them (sometimes quite literally--a buyer sometimes will say: "I'm not interested in seeing that--I know what they did and I know that a jury will agree with me"). The buyer, like Margie at the dance, is so deeply in love with the case that the buyer cannot see the flaws in the case. The buyer sees the ads, the "missing" 500 square feet, the math exercise, and concludes "That's all there is to the case." What I see is all there is. Or, as the Flamingos put it: "I don't know if it's cloudy or bright I only have eyes for you."

How can a party who is blinded by the love of his or her case see things in a clear and realistic way? The first thing to understand is that the trier of fact, while perhaps suffering from other forms of bias (racial, religious, ethnic) does not share the particular cognitive bias of the parties. Meaning, that unlike our buyer in the above example, the trier of fact does not start the trial believing that the buyer's view of the case is all there is. The trier of fact starts "in the middle." When the buyer has a good day in the trial, the trier of fact moves toward the buyer's position. When the buyer has a bad day in the trial, the trier of fact moves away from the buyer. Another way to put it would be this: the parties tend to see only one side of the table--the trier of fact is interested in seeing all four sides of the table before they decide which side they like the best.

The second thing to understand is the existence of the cognitive bias. Kahneman theorizes that cognitive biases exist because the human brain is fundamentally lazy--it usually takes the path of least resistance when called upon to decide things, most often using shortcuts instead of a real and deep analysis. Kahneman also suggests that the workings of cognitive bias are unconscious and most people don't realize the importance, impact or effect of them--we go through life blissfully ignorant of the way in which our thinking process unconsciously, and usually badly, affects the way in which we make decisions.

The third thing is to talk about it. I like to explain the concept of cognitive bias, including the concept of "What I see is all there is" to litigants. I believe that it's revelatory--it's like you have pulled away a curtain and exposed the true manner in which the person is organizing their thinking. My experience is that parties are surprisingly open to hearing and accepting that this may be having a real impact on their ability to understand and analyze risk in a lawsuit. It's almost like having a chronic pain and assuming it's caused by one thing but then having it actually diagnosed and understanding the real cause. It can be liberating to know the truth so that you can make better and more rational decisions.

The fourth thing is that mediation is really about risk analysis. In that context, it's easy to understand that you can only analyze risk with your eyes open. When your eyes are closed, when you are blinded by falling in love with your case, you cannot see risk.

I love the sweetness and romanticism of doo-wop. The simple lyrics and the simple chord progressions. Perhaps it represents a simpler and happier time. It makes the concept of love is blind attractive and compelling. But mediation is a more serious business and it requires us to take off the blindfold of cognitive bias to see the cold, harsh reality that there are many sides to a case and many possible interpretations of the facts. And many other, more intangible matters that influence the outcome of a lawsuit.

By understanding this better, parties can make a more rational and better-informed analysis of risk.

While not listening to doo-wop, Robert S. Mann mediates and arbitrates business, real estate, and construction disputes at ADR Services, Inc. He can be reached at rmann@mannconstructionlaw.com.