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I’ve been reading the latest book by Dan Heath and Chip Heath, Decisive. (They have written two other great books: Made to Stick and Switch.) Many great insights are offered in this book that pertain to decision making and also applicable to how we resolve disputes. I’ll focus on the importance of choosing a good process. Excerpts from Decisive are in quotations.
Decisive identifies “four villains of decision making” – narrow framing, confirmation bias, short-term emotion and overconfidence, and provides strategies for overcoming them. These “four villains” also often obstruct parties in a legal dispute from reaching the best result. Short-term emotion and overconfidence often result in people making the wrong choice of which process they use to resolve their dispute. 
For example, the short-term emotions of “wanting to get our vengeance” or “making the other side pay for what they did” or “wanting to make them suffer” often lead people to either suing the other side or vigorously defending the other side’s lawsuit. Most of the time, other approaches provide better ways to achieving the party’s goals and satisfying the party’s long-term interests. But because clients only see their side of a dispute at the beginning, their view is usually tainted by overconfidence and leads them to think they have a “slam-dunk” case. That overconfidence often leads them to choose a process and a lawyer that will stoke that overconfidence rather than tempering it with a reality check.
Lawyers trained in Collaborative Counsel or as Settlement Counsel can help people overcome the first two villains by digging beneath the emotion-charged positions to uncover the real interests of the clients. These kinds of lawyers, like trained and talented mediators, are able to counter these two villains by reality testing people’s biases and assumptions and widening the options for resolving the dispute.
Narrow framing and confirmation biases often hinder productive negotiating and block the path to developing better options for resolution. An example of narrow framing is when a party sees only two possible outcomes: Either winning and getting money or losing and getting nothing (zero sum game). Confirmation bias sometimes blurs a party’s ability to read the circumstances or the other party with clarity. Lawyers trained in Collaborative Counsel or as Settlement Counsel can help people overcome the first two villains by digging beneath the emotion-charged positions to uncover the real interests of the clients. These kinds of lawyers, like trained and talented mediators, are able to counter these two villains by reality testing people’s biases and assumptions and widening the options for resolving the dispute.
Decisive also discusses the importance of using processes, as opposed to making quick decisions or trusting your gut. Whether in making career decisions (a study showed that 44% of lawyers would not recommend that a young person pursue a career in law), business decisions (decisions on mergers and acquisitions 83% of the time failed to create value for shareholders) or personal decisions about relationships or retiring, many of our decisions are flawed. Studies showed that using a good process is more important than conducting rigorous analysis. “Superb analysis is useless unless the decision process gives it a fair hearing.” Further, “a better decision-making process substantially improves the results of the decisions, as well as the financial returns associated with them.”
Why is process important? “Because understanding our shortcomings is not enough to fix them. Does knowing you’re nearsighted help you see better?” The only decision-making process that is used widely by people is the pros and cons list idea, first suggested by Benjamin Franklin in 1772, when he suggested a technique he called “moral algebra”. But even this common sense approach is flawed by one of the four villains – biases in our thinking.
Decisive has reinforced my thoughts about the importance of how we approach decision-making and using the right process in resolving disputes as well as in all facets of life.
“A solid process isn’t just good for business; it’s good for our lives.”
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