Selecting the right mediator is a critical element to improving settlement outcomes. However, many advocates miss the opportunity to select a mediator who will increase the likelihood of a more favorable settlement. This article will discuss the basic principles of implicit and cognitive bias and strategies practitioners can use to leverage those biases to produce more favorable settlements.

Over the past 10 years there has been a significant amount of research on the existence and impact of implicit bias on decision-making. Implicit bias theory maintains that we all have unconscious biases that cause us to pre-judge people in a more positive or negative light. Studies have shown that because these biases are unconscious, they can impact our decision-making without our realizing we are being influenced.