Decisional Errors – On the Field, On the Bench, In Negotiations

fullscreen-capture-1112009-82720-pmbmpThe Question is Not Whether Humans Make Decisional Errors, But How to Compensate for Them

By Donald R. Philbin, Jr.

ESPN recently dubbed baseball umpire Tim McClelland’s missed calls in Game 4 of the American League playoffs as “the worst umpiring performance at an Angels games since Leslie Nielsen in ‘The Naked Gun.’1 While his mistakes were not outcome determinative, they rekindled calls for the use of instant replay.

Those of us who have spent time with disputants were not surprised.  As New York Yankee Derek Jeter put it: “Umpires are human.  They make mistakes sometimes.”2 We routinely anticipate errors and design systemic checks to identify and address them.  Appellate courts and appellate arbitration panels, like instant replay, owe their existence to the need for second (or third) looks.

In fact, the ultimate second-looker famously analogized the roll of judges to umpires in his confirmation hearings.  Chief Justice John G. Roberts of the United States Supreme Court said, “Judges are like umpires . . . Umpires don’t make the rules; they apply them.”3

In a takeoff from Malcolm Gladwell’s best-selling book Blink, Professor Chris Guthrie drilled into judicial error rates in Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1 (2007).  There, law professors asked a large group of trial judges to respond to a three question survey at a judicial conference. Each question has an intuitive, snap answer (a “blink”) and another analytical answer that might be the result of a reasoned opinion. Perhaps unfairly, the questions were not application of law to fact questions that judges might face at work, but analytical quizzes reminiscent of the SAT:

1.       A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost?  5 (not 10) cents

2.       If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets?  5 (not 100) minutes

3.       In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half the lake? 47 (not 24) days

The authors reported a 1.23 mean, but parties unable to settle out of court may be more interested in the fact that 31% of the responding judges did not get any of the questions right. There may be inherent problems with this and any survey. The judges may not have put much effort into the break-time quiz at their information packed conference and the questions do not approximate what they are asked to do on the bench. But that is little consolation to those on the “wrong end” of a judgment they forced by not making their own deal in mediation.

Another major study concluded that even parties advised by experienced litigators are not above error.4 Comparing actual trial results with rejected pre-trial settlement offers in more than 4,500 cases and 9,000 settlement decisions made during a 44-year period, the study found that 61% of plaintiffs and 21% – 24% of defendants obtained an award at trial that was the same or worse than the result that could have been achieved by accepting their opponent’s pre-trial settlement proposal. Yet while plaintiffs tend to make more errors in their estimates more frequently, defendants do so with greater severity. When a plaintiff misses the mark, she is only off by an average $43,100. The defendant misses less frequently, but the verdict is 26 times the last offer when he does: $1,140,000.

Psychologists have long taught us that people with exactly the same information reach different conclusions.  Buyers rarely want to pay as much as sellers demand, whether negotiating the sale of a house, car, or lawsuit.  It’s largely a matter of assigned position. But the magnitude of the decisional error is telling.  Subjects asked to price a generic coffee cup for sale assigned it a value of $7.12. Buyers initially offered $2.88 for the same cup – 2.5 times less.4

These studies confirm and quantify what we know intuitively:  people (including umpires, judges, litigants, and others) make mistakes and when litigants are wrong, sometimes they are very wrong. The barrier preventing resolution may not be that litigants can’t see the same solution; it may be that they cannot see the same problem.

Mediation is a commonly used to debias positional assumptions that lead to impasse.  The reality is that we reactively devalue everything our enemy says, even if it would be helpful to us – “that can’t be good for us, or they would not have offered it.”  In fact, a Cold War experiment quantified the magnitude of this reactive devaluation bias. Soviet leader Gorbachev made a proposal to reduce nuclear warheads by one-half, followed by further reductions over time.  Researchers attributed the proposal to President Reagan, a group of unknown strategists, and to Gorbachev himself.  The surprise was not that the group reacted differently to the same proposal depending on its source, but the wide range of difference. When attributed to the U.S. President, 90% reacted favorably. That dropped marginally when attributed to the third-party (80%), but in half (44%) when attributed to the Soviet leader.5

So the surprise is not that an umpire missed a call, it’s how to deal with it systemically.  Like litigants, baseball stakeholders have options, and a quick appellate ruling from the pressbox may be the most expedient here since the full record is easily available.


Donald R. Philbin, Jr. is an attorney-mediator, negotiation consultant, arbitrator, and Adjunct Professor at Pepperdine University School of Law — Straus Institute for Dispute Resolution. For more info, see

1 Caple, Jim, Umpire errors a real embarrassment,, Oct. 20, 2009, available at


3 Bruce Weber, The Deciders: Umpires v. Judges, N.Y. Times, July 11, 2009, at WK1, available at

4 Randall L. Kiser, et. al, Let’s Not Make A Deal: An Empirical Study Of Decision-Making In Unsuccessful Settlement Negotiations, 5 J. Empirical Legal Studies 551-91 (Sept. 2008), available at

5 Donald R. Philbin, Jr., The One Minute Manager Prepares for Mediation: A Multidisciplinary Approach to Negotiation Preparation, 13 Harv. Negot. L. Rev. 249 (2008), available at

Originally published to HNLR Online on Nov. 1, 2009.

10 thoughts on “Decisional Errors – On the Field, On the Bench, In Negotiations

  1. Well said!

    “The barrier preventing resolution may not be that litigants can’t see the same solution; it may be that they cannot see the same problem.

    Mediation is a commonly used to debias positional assumptions that lead to impasse.”

  2. 1. I don’t get the significance of finding out that Judges don’t make good snap decisions which require some algebra. Now, if being told of their failure they still couldn’t figure it out might be interesting. But these problems are nothing like the Allais or Ellsberg paradox in decision theory.

    2. I disagree that litigates have to see the same problem, trades between differing risk/preference profiles are what makes mediation possible.

  3. Don — thank you. Your piece is terrific, and “Blinking on the Bench” raises even more questions. No question instant replay could be useful in baseball on a number of calls — fair/foul, home run/not home run. Would you go so far as to replace the home plate ump with a machine for balls and strikes?

    And your highlight of the mediator’s role in offsetting some of the bias is spot on, but isn’t the mediator just as prone to many of the biases (anchoring bias, recency bias, etc.) that the judges are? And how do we compensate for those? Training, I guess.

    Which, I suppose, is what I’d do with the home plate umps on balls and strikes. Grade them and train them with the machines, but don’t replace them.


  4. Joy Lanzaro commented that ““The barrier preventing resolution may not be that litigants can’t see the same solution; it may be that they cannot see the same problem”.

    I completely agree with her in this respect. In my mediating experiences this has been the case. I have grasped the idea that one’s perception is also their reality and I can attest that in approximately 70 – 75% of my total mediations the principal stumbling block to a resolution in the early stages of the process has been a difference in how the litigants assessed and/or perceved the conflict to be. Because I primarily practice facilitative mediation and my objective is to facilitate a self-determined resolution; the sooner I can identify that there are in fact varying and biased views of what the conflict is and how that conflict was created I gain a substantial leg up in facilitating a resoluton, The number of litigants whom when asked
    to describe what the dispute is or what brings them to mediaton will offer differing (and naturally) very biased reasons.

    Essentially, my experiences have taught me that a mediator’s skills to accurately diagnose the perceived and/or underlying litigant perceptions of the conflict can be just as important to successful resolution as his/her facilitative skills.

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  6. It is not just positional assumptions that lead to decisional errors–it is litigation incentives and our fear of loss. Yes, the empirical data shows that plaintiffs tend to much more frequently err when it comes to settlement negotiations. But many, if not most, personal injury plaintiffs have no skin in the game. Many of them do not pay for a shot with the jury, so they see little downside so rejecting a settlement offer. (All the more argument for escalating contingency fees.) On the other hand, defendants, who will be paying the cost of an expensive trial, are in a different position. Their smaller error rate is far outweighed by its magnitude. I would explain this simply: it is wishful thinking meets the desire to avoid the pain of paying big. That is a truly powerful force.

  7. People make mistakes but if there is a way of compensating for them I think it needs to be taken.

    For example in baseball the MLB still won’t allow video replay to go back on calls, why? It makes no sense to me.

  8. Am I right in saying; so given that people are flawed interpretive (of reality) machines; then you have to know all the various options you have a right to use. And the chart though simple, has the complex reality that the works of Kant have, when trying to understand. Well; is it that the enemy remains ignorance? And how can we actually come to use our minds to see truth? Hence; the point with judges not seeing the real answer is; people don’t see the actual problem. They feel things in a utilitarian way; declare that the liberty to be wrong is right; and we end up with stupid is as stupid does instead of the majoritarian or morally obvious truth; which is the price of gas is rising and the price of homes is falling. Anyhow; I notice how the umps (at little league) and the judges are. Sitting atop a contest; where if the rules of truth are observed, we are less likely to allow the building of nuclear reactors which can’t withstand tsunami; and we know that is going to happen every so often, don’t we? Well; any PON remains inspirational to me at least. And believe me; some days I really need it.

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