The psychology of litigation

No. 3 in a series: The psychology of litigation and settlement

Family law isn’t all dry legal stuff. It can be highly emotional. (After all, the clue’s in the name.) That means that other factors come into play, like psychology.

So, in the final part of our series of blogs on the psychology of litigation and settlement, let’s have a chat about just that.

One of the main issues is cognitive bias. Let’s look at some examples.


This means what it says on the tin: having too much confidence in your own ability or an outcome. When it comes to litigation, a good lawyer will give you a realistic view.

Anchoring bias

This is where the litigant focuses too much on initial information. That might be legal fees, historic grievances against your spouse or indeed who wants to kick-start the process of separation and divorce. This can distort your opinion about strategy and settlement offers.

Framing bias

How a question is asked can influence the answer.

Perceptual bias

Ever thought your own success was down to your own abilities and hard work, but others’ achievements were all luck? Welcome to perceptual bias.

Probability bias

Just because your coin has come up heads five times in a row doesn’t mean you’ll get tails next time. It’s still 50/50.

Sunk-cost bias

Basically, the legal equivalent of throwing good money after bad. Even though you know your initial decision was wrong, you’ve invested so much money that you feel you have to inject even more… and continue with a failing strategy.

Probability neglect

Imagine one horrendous outcome with a likelihood of 25% and an even worse one of 2%. Your brain equates the probability of both. That’s because you’re focused on the grim nitty-gritty of the outcome rather than the chance of it actually happening. This can affect family-law decision-making.

Confirmation bias

This is a subconscious state where people process only the information that confirms their pre-held opinions. At the same time, they’ll dismiss opposing views.

Availability bias

You can easily recall instances of plane crashes, but maybe you’ve never experienced anyone having a stroke. Therefore, you think a plane crash is a more-likely event.

Risk perception

People aren’t very good at assessing risk. Generally, we’re pretty risk-averse. That means you’re likely to settle for less than the appropriate value of your claims. Worse still, you might not be able to see the appropriate value of your claims and the costs risks that you will be exposed to if you continue to make unrealistic demands.

What can be done?

In litigation, common sense and probability are always winners. To counteract cognitive bias, you need objective analysis.

The trouble with family law is that it’s always tough to put aside emotional factors and make rational decisions. But with plenty of information, you can get a more-realistic view of your options.

Of course, all this bias helps cloud the already opaque world of litigation, in which there are so many unknowns. That said, you should always be clear about certain things, such as costs, prospects of success and how long it will take.

At Manders Law, we provide our clients with regular risk-versus-costs analysis as the case progresses to help you stay in control and completely focused on getting the best outcome.

For an initial FREE consultation on any aspect of family law, call Manders Law on 01245 895 105 or email us here.


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