Bias: a good reason to settle before trial?

Bias as a good reason to settle at trial?In a punchy headline, the ABA Journal sums up the message a U.S. Supreme Court justice has for his critics in “I’m Conservative, But Not Biased, Scalia Says … So Get Over Bush v. Gore“, a story about Scalia’s recent interview with the TV news magazine 60 Minutes.

As I read the story, I thought back on other controversial cases in which those critics questioned Scalia’s ability to be impartial. For example, there’s the infamous duck hunting trip with Cheney, when a case involving the Vice President was pending before the Court. Despite Scalia’s insistence that “I do not think my impartiality could reasonably be questioned”, folks who understood something about the subtle tools of persuasion weren’t so reassured. One of those tools, reciprocity, is what creates a powerful sense of obligation when we receive a gift from someone else.

What makes bias so pernicious is that all too often we are blissfully unaware of our own. I’m guessing that maybe all that certainty is simply evidence that Scalia has fallen victim to one of the most pervasive of cognitive errors, overconfidence bias, which explains why a large majority of us place ourselves in the statistically impossible top percentile when it comes to things like driving skills, intelligence, negotiating abilities, even humor. As two Cornell University researchers put it, most of us are unskilled and unaware of it (PDF).

Scalia is undoubtedly conservative. But unbiased? Given how blind we all are to our own biases, this makes a good case for settling before trial; it’s tough enough being at the mercy of our own cognitive errors. Why be at the mercy of those of the judge, too?

3 responses to “Bias: a good reason to settle before trial?

  1. Not to mention the jury. Multiply the inherent, unknown and undetected bias of the judge by twelve, and then add to it the time pressure resulting from the fact that most of the twelve would rather be somewhere else!

  2. As rusty as the hinges of doors to justice may be, the courtroom and the pretrial process is still an important way to speak truth to power and correct oppressive power imbalances. I believe in private deal making with all my heart, but one bias of mediation we do not talk about is its contextual bias, that is that resolution between parties beats decision making by a third party. This is not always true, especially when there is an inherent imbalance of power consciously or unconsciously present in the deal making setting. I think we are being asked to walk a paradoxical line: conflict resolution is good, but sometimes, because it does not hit conflict head on, even encourage conflict escalation, it fails to serve a higher purpose. Gandhi and Martin Luther King understood this, and used nonviolent political process to good ends. Nonviolent legal process, as squeaky as it may be, provides another nonviolent to confront injustice and oppression. Let’s not throw the baby out with the bath water in our cleansing conflict resolution efforts.

  3. John, I couldn’t agree with you more. I do not count myself among those who view litigation as a necessary evil. The jury trial is one of the hallmarks of democracy, and one of the few ways in which ordinary citizens participate in it. The rule of law means access to justice and to the courthouse doorway. I’ve talked about that in “Debating the meaning of the ‘A’ in ADR” and in “Is it time for a Nobel Prize in law?” It’s one reason why I oppose so strongly efforts to limit access to the legal system, including mandatory arbitration and the misnamed “tort reform”.

    On the other hand, perhaps I didn’t go far enough here. Perhaps I should have added that it may be even better to settle on your own than to mediate — after all, even mediators are not immune to their own implicit biases. Some of us, in fact, like Scalia, may be overconfident about our ability to be impartial.

    John, I always delight to see your comments. I’m glad you stopped by.