L’INCIDENCE DES PRÉJUGÉS INCONSCIENTS SUR LES PROCESSUS DE NÉGOCIATION ET DE MÉDIATION

Abstract

While legal professionals may believe that they are making data-based decisions resting on objective facts, all human beings make decisions based on information about which they are not always aware. To make judgments and solve problems quickly and efficiently, lawyers create mental shortcuts that follow instinctive patterns and survival habits developed over millions of years. These mental shortcuts are referred to as “cognitive biases.” This article examines one form of cognitive bias that is particularly pernicious as it concerns specifically those who are historically marginalized and because it privileges those who already occupy social power: “unconscious bias.” This article aims to highlight the contours of some common iterations of unconscious biases and their impact on one form of decision-making: informal dispute resolution processes. The authors also examine some avenues for mitigating unconscious bias in the context of negotiation and mediation.