Comments on: Psychological Barriers to Accurate Risk Assessment http://businessconflictmanagement.com/blog/2010/05/psychological-barriers-to-accurate-risk-assessment/ Conflict Management Expertise from F. Peter Phillips Fri, 18 May 2012 07:34:32 +0000 http://wordpress.org/?v=2.7.1 hourly 1 By: Jeanette Nyden http://businessconflictmanagement.com/blog/2010/05/psychological-barriers-to-accurate-risk-assessment/comment-page-1/#comment-1532 Jeanette Nyden Thu, 27 May 2010 16:43:13 +0000 http://businessconflictmanagement.com/blog/?p=579#comment-1532 Adding to Joe's comment, I think that clients want trial attorneys to be "on their side" and being on their side means having confidence in their case. I was a trial attorney for 9 years before becoming a professional mediator. I left trial work when a colleague at the firm where I worked asked me, "whose side are you on?" when I was talking to her about the downsides of litigation for her client. I couldn't even explain the obvious risks to another attorney without looking like a traitor. I am well aware of this issue when I mediate. I get to be the bad guy and tell parties that their chances are lower than they think. Their lawyer, from my personal expereince, does not have that opportunity. Adding to Joe’s comment, I think that clients want trial attorneys to be “on their side” and being on their side means having confidence in their case. I was a trial attorney for 9 years before becoming a professional mediator. I left trial work when a colleague at the firm where I worked asked me, “whose side are you on?” when I was talking to her about the downsides of litigation for her client. I couldn’t even explain the obvious risks to another attorney without looking like a traitor.

I am well aware of this issue when I mediate. I get to be the bad guy and tell parties that their chances are lower than they think. Their lawyer, from my personal expereince, does not have that opportunity.

]]> By: Joe Markowitz http://businessconflictmanagement.com/blog/2010/05/psychological-barriers-to-accurate-risk-assessment/comment-page-1/#comment-1492 Joe Markowitz Fri, 21 May 2010 18:09:15 +0000 http://businessconflictmanagement.com/blog/?p=579#comment-1492 What some people might look at as a cognitive flaw, I would say is also essential to good performance as a trial lawyer. Unless you can project a strong belief in your case yourself, you are going to have a hard time persuading a judge or jury of your position. So while you have to be aware of the flaws in your position, and the strengths of the other side's position, and while you also want to give your client accurate information about their chances, you also almost have to be a bit over-confident in order to do an effective job as an advocate. So we shouldn't criticize trial lawyers for having a mental bias that is actually necessary for them to do a good job. Rather, we have to design the system so that clients can get more objective information about their cases. Isn't that where mediators step into the picture? http://www.mediate-la.com/2010/05/optimism-in-decision-making.html What some people might look at as a cognitive flaw, I would say is also essential to good performance as a trial lawyer. Unless you can project a strong belief in your case yourself, you are going to have a hard time persuading a judge or jury of your position. So while you have to be aware of the flaws in your position, and the strengths of the other side’s position, and while you also want to give your client accurate information about their chances, you also almost have to be a bit over-confident in order to do an effective job as an advocate.

So we shouldn’t criticize trial lawyers for having a mental bias that is actually necessary for them to do a good job. Rather, we have to design the system so that clients can get more objective information about their cases. Isn’t that where mediators step into the picture?
http://www.mediate-la.com/2010/05/optimism-in-decision-making.html

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