Confirmation Bias: Getting it Backwards in High Conflict Disputes

©2023 Bill Eddy, LCSW, Esq.

Confirmation bias is a scientific and psychological term that needs to be considered when anyone is dealing with a high conflict dispute, including professionals and the individuals involved. It basically means that a person jumps to a conclusion about what is going on and then only looks at and believes information that confirms their original conclusion—even when it’s wrong. They ignore contradictory information and interpret vague or irrelevant information to fit into their theory of what is happening.

This is why responsible scientific researchers are required to look for evidence that may disconfirm their theory and prove a different theory, as well as information that supports it. Unfortunately, most conflict resolution professionals (lawyers, mediators, judges, therapists, and others) don’t know the importance of confirmation bias and often get their cases backwards when dealing with high conflict people who are often persuasive blamers. This article addresses what professionals and individuals in high conflict disputes can do to avoid confirmation bias, including four proposals to significantly improve accuracy.

To give some context, the following three examples demonstrate the serious consequences of confirmation bias.

The “Abusive” Father

When I graduated law school in 1992 in San Diego, there was a big case in the news about a father who was charged with sexually abusing his 8-year-old daughter. The father vigorously denied this, and the mother vigorously defended him, so the daughter was placed in foster care. After more than a year in foster care while the father’s trial was pending, the daughter finally told a therapist her father did it. After over two years in foster care and individual therapy, the girl was going to be adopted out. Almost all professionals, on both sides of the case, believed that the father must be guilty and were irritated with his unwillingness to confess. Then, shortly before trial, the deputy District Attorney discovered that DNA evidence ruled out the father as the perpetrator.

From the beginning, the daughter had told this “crazy” story of a man coming into her bedroom window, taking her out, sexually abusing her, then putting her back in her room. Of course, everyone thought she was just protecting her father, who was an obvious suspect. Except that the girl’s story turned out to be true! Another man was found guilty of the same behavior in the same neighborhood around the same time period with four other young girls. Guess what! His DNA matched the girl’s clothing. This was a case of confirmation bias, which cost county agencies approximately $3 million in legal settlements for how they mishandled the case.

Around that same time, the American Psychological Association published a book titled Jeopardy in the Courtroom. They addressed an insidious form of confirmation bias called interviewer bias which influenced children to make false “disclosures,” such as the girl did in the above case.

Interviewer bias characterizes those interviews where interviewers have a priori beliefs about the occurrence of certain events and, as a result, mold the interview to elicit statements from the interviewee that are consistent with these prior beliefs. One of the hallmarks of interviewer bias is the single-minded attempt to gather only confirmatory evidence and to avoid all avenues that may produce negative or inconsistent evidence. Thus, while gathering evidence to support his hypothesis, an interviewer may fail to gather any evidence that could potentially disconfirm his hypothesis. [1]

Two “Bad” Employees

I am aware of a few cases like the following in the workplace, in which a conflict between two employees is assumed to be contributed to equally, so that they both get fired with little investigation.

For example, a few years ago two employees started getting into perpetual conflicts. Each complained to their boss that the other was bothering them and starting fights. The boss didn’t have time to figure this out, he said, so one day there was a physical fight and he assumed that both parties must be at fault—so he fired them both! In a lawsuit, it became clear that one employee had consistently bullied the other employee who was a member of an ethnic minority group. The targeted employee complained to superiors, but all that was done was a lecture to both parties equally to behave better.

It was unclear who started the physical altercation, but it was clear to witnesses that the situation leading up to the fight was bullying of the minority group member. He brought the lawsuit based on unlawful discrimination. However, the history and inaction of the company didn’t matter. Physical fighting (which they both admitted to that day) violated the company policy, so that the company was allowed to simply fire them both. Case closed. The lawsuit against the company was dismissed. [2]

In many countries, including the United States, hiring and firing is “at will,” meaning that employers can fire both parties even if one is primarily responsible for a problem. Bullying is not illegal in the workplace in the United States. An exception against firing at will is when there is discrimination against a member of a group protected from discrimination, such as ethnic minorities, gender, age, and so forth. However, in this case, even though one was repeatedly bullying a member of a minority group, on that one day they both broke the rule about no physical violence, so the company was free to fire them both. This is a different kind of confirmation bias, in which the presumption is that both parties are equally at fault and should be equally punished, when the full evidence pointed to one person.

The “Meddling” Mom

In 2010, in a small California city, a mother went to court to get a restraining order against the father of their infant son, about 9 months old. The mother said the father was depressed and angry about her separating from him. He had sent her a story he wrote about killing their son. She sought a temporary restraining order that would require supervised contact for the father with the son. He denied having a problem and stated that she was just trying to eliminate his son from his life. The judge quickly believed the father over the mother and openly stated that he believed she was lying and unreasonably trying to interfere with the father-son relationship. He denied her request, stating: “My supposition is, ma’am, that you’re lying.” Within ten days, the father murdered the son and committed suicide. [3]

It’s easy to pick on family courts, but they often have thousands of cases and must make many decisions each day with very little time. I often speak at judicial conferences and hear about the time pressures that judges are under, often with very little evidence to consider.

The Trouble with Presumptions

In each of the above cases, the professionals and decision-makers appeared to have unwritten unconscious presumptions about high conflict disputes, which they confirmed to themselves:

  1. Allegations of abuse against a parent are almost always true.

  2. It takes two to make a fight, so it is almost always both parties’ fault.

  3. Allegations of abuse are almost always false and designed to get an advantage.

If you ask yourself, you may also have a presumption along these lines. In my forty years of practice as a therapist, lawyer, and mediator, I have seen many professionals and decision-makers have these unwritten, unconscious presumptions. They aren’t even thought about or talked about much.

Unfortunately, professionals can be very confident in their beliefs and presumptions. Yet research tells us that confidence increases confirmatory bias. Once someone has jumped to a conclusion about what has occurred, they are extremely unlikely to open their mind to other possibilities.

We show that holding high confidence in a decision lead to a striking modulation of post-decision neural processing, such that integration of confirmatory evidence is amplified while dis-confirmatory evidence processing is abolished. We conclude that confidence shapes a selective neural gating for choice-consistent information, reducing the likelihood of changes of mind on the basis of new information…. We observed the strongest confirmation bias when people were already confident in their decisions. [4]

This suggests that experienced professionals may be more prone to confirmation bias because we tend to be more confident in our opinions based on experience with many cases. Lawyers often have had hundreds of cases and judges often have responsibility for thousands of cases each year, so that there is pressure to make decisions quickly. Rather than spending time trying to analyze what is going on in a conflict, professionals tend to quickly focus on how to resolve the dispute. After all, isn’t that what most professionals are expected to do as lawyers, mediators, judges, therapists, human resource managers, administrators, law enforcement, etc. Much of the time, they are very accurate and helpful. But this speed and confidence runs into trouble with high conflict disputes.

High Conflict Cases

High conflict cases in courts, in mediation, in the workplace, and in counseling offices are known for having a lot of emotions, long drawn-out conflict and hostility, many upset people drawn into the dispute, and few verifiable facts. Most of the high conflict behavior occurs in private, as in the three cases above. They usually have one or more people with a high conflict personality, who tends to have:

  • A preoccupation with blaming others

  • A lot of all-or-nothing thinking and solutions

  • Unmanaged or intense emotions

  • Extreme behavior

In many cases, they also have a personality disorder or traits of one, which includes an enduring pattern of behavior based on their inability to see their part in problems and a lack of efforts to change their own behavior (because they don’t believe they have a problem). While personality disorders have been recognized in the mental health fields for decades, legal professionals and workplace professionals remain quite uninformed about them and their patterns of behavior. (See my article in our January newsletter: “The New Elephant in the Room: Why All Professionals Need to Learn About Personality Disorders.” [5])

One of the most important characteristics of personality disorders is that they rarely change their behavior. This is primarily because they honestly see themselves as blameless in the problems of their lives—they cannot connect the dots from their own behavior to their own problems and conflicts. As the authors of a book on Cognitive Therapy for Personality Disorders wrote in 1990:

Personality-disordered patients will often see the difficulties that they encounter in dealing with other people or tasks as external to them, and generally independent of their behavior or input. They often describe being victimized by others or, more globally, by ‘the system.’ Such patients often have little idea about how they … contribute to their own problems…. [6]

This leads them often to focus on specific other people as their targets of blame, as research showed by 2012. (Initials below stand for: PD = personality disorder; BPD = borderline personality disorder; ASPD = antisocial personality disorder; NPD = narcissistic personality disorder.)

A common characteristic of persons with PDs is that they themselves most often do not consider their behavior to be problematic (i.e., the traits are ego-syntonic), yet their way of dealing with other people may represent a major stressor to persons who are close to them. Subsequently, parents with symptoms that are characteristic of BPD, ASPD, and NPD may readily see the faults and flaws in their children (and spouses) but rarely acknowledge that their own behavior or attitude contributes to any problems. [7]

Persuasive Blamers

The result of these fundamental personality characteristics is that such high conflict people (HCPs) can be surprisingly good at persuading others that they are blameless and that one or more people around them are the true cause of all their problems. Their simple stories of being victims, intensity of emotions, and all-or-nothing thinking can make them very believable—in contrast to their opponents in high conflict disputes, who are often talking about the messy, confusing truth of a matter.

They have a lifetime of experience with this and the unwary are constantly getting hooked into believing them, especially when they don’t have any background on what they are really like. They can appear highly credible, such as in court, because they often honestly believe the false or distorted information they are providing or have grown comfortable making false statements in public.

As I first described in my book Splitting, these dynamics drive many (most) high conflict disputes:

Persuasive blamers focus the blame for their problems on one specific person: a target of blame (or just “target”). Targets of blame are usually:

  • Intimate partners

  • People perceived to have authority, such as doctors, lawyers, clergy, police officers, managers, and government employees

In divorce, the target is most commonly the divorcing partner. But sometimes it becomes one of the children, the other partner’s lawyer, the other partner’s new romantic interest, or even the judge or mediator. … Blamers’ cognitive distortions can be extreme and lead to extreme behavior. [8]

Cognitive Distortions

People with personality disorders tend to have a lot of cognitive distortions, which adds to their ability to be persuasive. Cognitive distortions put a spin on reality. We all have them, but we usually “check” ourselves before we act on them. (“Is this really true? Probably not. I’m going to wait and see before acting on this.”) Those with personality disorders often act on them as if they were true and their commitment to their distorted perceptions can be contagious. Here are some examples of cognitive distortions that show up a lot in legal disputes, which I explain in my book High Conflict People in Legal Disputes as follows:

  • All-or-nothing thinking—seeing things in absolutes, when little is absolute

  • Emotional reasoning—assuming facts from feelings (I feel stupid, therefore I am)

  • Minimizing the positive, maximizing the negative—distorting reality to keep on being stuck

  • Overgeneralization—drawing huge conclusions from minor or rare events

  • Personalization—taking personally unrelated events or events that are beyond control

Projection is another important distortion for HCPs. Just as a movie projector in a hidden booth throws a large image on a screen, those with personality disorders project their internal problems onto their environment. Then they claim another person has the problem that they in fact have. Spousal abusers claim the other spouse is being abusive. Liars claim the other is lying. [9]

Extreme Behavior

Consequently, abusive behavior and false allegations of abusive behavior are two sides of the same coin, generally driven by the distorted thinking of those with high conflict personality disorders or traits. In today’s world, all professionals and all decision-makers need to become aware of these personality-based tendencies. When abusive behavior and distorted perceptions are combined with persuasive personalities, true and false allegations of abuse look alike on the surface, leading to many problems:

  • Someone is acting very badly.

  • There is a lot of anger on both sides.

  • Both sides are pointing fingers, attacking, and defending.

  • There are few facts to look at, because they are usually about private behavior.

  • They often have lots of advocates on their side, often exposed to distorted information.

  • Professionals, family members, co-workers, neighbors feel anxious, angry, protective.

  • Unwritten presumptions get activated and exaggerated causing jumping to conclusions.

  • Professionals act on presumptions instead of asking questions with an open mind.

  • No reasonable actions or decisions can be based on this emotional surface information.

  • But professionals are confident and there’s no time = confirmation bias.

Parental Alienation and Realistic Estrangement

While confirmation bias exists in every area of life, one area where it is particularly troublesome today is figuring out why some children resist or refuse contact with one of their parents in divorce. This is currently occurring in 20-25 percent of litigated divorce cases, according to a recent presentation in a continuing legal education course in California. [10] In many cases, it is the result of a parent engaging in alienating behaviors, such as bad-mouthing the other parent to the child, scheduling activities and appointments during the other parent’s time, and intense emotions shared with the child (anger, sadness, fear) about the divorce.

In many other cases, the child is realistically estranged because their resistance it is the result of a parent’s own behavior with the child, such as physical abuse of the child, domestic violence in front of the child, intense emotions aimed at the child (anger, hurt, blame), and in rare cases child sexual abuse (in about 2% of litigated divorce cases [11]). For the past thirty years, professionals have often become advocates for one point of view or another. Unfortunately, this has often led to confirmation bias about their favorite theory of what’s happening when a child resists a parent, rather than maintaining an open mind and inquiring equally about all possibilities.

Other Types of High Conflict Disputes

Many people are aware of criminal cases and civil lawsuits in which juries appear to have gotten them backwards. I am personally aware of two such cases of an alleged hostile workplace brought by parties with likely antisocial personalities against universities which cost them about $1 million each because the plaintiffs were such persuasive blamers. We see criminal cases regularly in the news where someone was falsely accused and was finally cleared as the result of massive research and public awareness. Some of these prisoners are released after years in prison because of assumptions made because of race, odd appearance, or of antisocial witnesses who were comfortable lying.

What is To Be Done?

I have four recommendations to help professionals dealing with high conflict disputes to be more accurate—and compassionate. I recommend that all professionals keep an open mind, including lawyers, therapists, mediators, judges, human resource professionals and administrators.

  1. Equally consider at least three theories of the high conflict case:

    a. Allegations that one party is acting badly may be true.

    b. The allegations may be entirely false, and the other party is acting badly.

    c. Both parties are acting badly relatively equally.

    Considering three such theories equally will go a long way to avoiding confirmation bias. Even considering the possibility that a case may fit in a less obvious category would really help. In so many cases, professionals and decision-makers never even address more than one theory and pour a lot of time into acting on the wrong conclusions. Discuss this openly with a client or even both parties to the dispute, so that they know all possibilities are receiving serious attention. Avoid the urge to jump to a conclusion and act upon it.

  2. Reduce your level of confidence. Keep an open mind to new information and the possibility that your first conclusion could be wrong. Maintain a healthy skepticism.

  3. Ask more questions—specific questions. When someone makes an extreme statement (the other party is a “monster.” Or: “The child says it’s a living hell in the other parent’s home.” Or: “My co-worker is harassing me.”), ask for specifics. These emotional words often shut down inquiry when they should open it up for deeper examination. All professionals should ask new clients at least a few specific questions about their own behavior and the other parties’ behavior so that they are operating accurately on the situation. (“What’s your part in this problem? What will the other say about you? Does the other party lie a lot? Have you ever been abused by the other in these ways…?”)

  4. Create a positive environment for searching for the truth of the matter. You will get more useful and accurate information from a client who doesn’t have to feel defensive. Avoid lecturing and criticizing clients with comments like “I know you’re lying” or “I know you did it.” Instead, say: “After considering all of the alternate theories of the case, the evidence points me in this direction.” Keep an open mind. Never close your mind to the possibility that your current assessment may need to be updated.

Conclusion

All professionals make judgments about their clients and their cases. This is human nature. But in today’s complex world of information and high conflict disputes, it’s easy to get cases backwards. This is especially true when people with personality disorders or traits are involved, because of their cognitive distortions, lack of self-awareness, and lifetime history of blaming others—sometimes quite persuasively.

Watching out for confirmation bias is an important concern and considering more than one theory of the case is essential for avoiding serious mistakes such as getting a case backwards. Individuals involved in a high conflict case as a party should be careful to clearly explain to professionals why they should consider at least three theories of your case, and why the evidence supports your theory the most. Also provide evidence that shows that the other theories don’t fit in your case.

High conflict people aren’t bad people, they’re just misled by their cognitive distortions and unconscious urges. Consequences for behavior and/or programs for behavior change are more appropriate and much more effective than lectures (and lectures without consequences are particularly unhelpful). Professionals should talk about choices and consequences, rather than about being a good or bad person. Recognize that some people are very inaccurate, but are truly unaware of their distorted perceptions. Ask a lot of questions and use compassion in explaining why certain decisions need to be made. In high conflict disputes, there is often a reasonable person being falsely accused and/or one whose behavior needs to be changed or restraints put in place to protect others. Let’s all develop the wisdom to know the difference.

[1] Ceci, S.J. and Bruck, M. Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony, Washington, DC: American Psychological Association, 1995, 79.

[2] Abdullahi Hassan v. Sanford Medical Center, 2021 U.S. Dist. LEXIS 110924

[3] Friedman, G. “Fatal Court: ‘The harm to children in the nation’s family courts has reached crisis proportions’” Deseret News, September 17, 2019. Retrieved on 2/11/23 from: https://www.deseret.com/2019/9/17/20805882/fatal-family-court-parental-rights-custody-battles-child-deaths-harm-center-for-judicial-excellence

[4] Rollwage, M. et al, “Confidence drives a neural confirmation bias,” Nature Communications, (2020) 11:2634, www.nature.com/naturecommunications.

[5] Eddy, B. “The New Elephant in the Room: Why All Professionals Need to Learn About Personality Disorders,” High Conflict Institute Newsletter, January 4, 2023. https://www.highconflictinstitute.com/hci-articles/the-new-elephant-in-the-room-personality-disordersinf_contact_key=d52f0da67f4fa582fcb6d19ad8a7a1c5

[6] Beck, et al, Cognitive Therapy of Personality Disorders. 1990, 5-6.

[7] Berg-Nielsen, T. S., and Wichstrom, L., “The mental health of preschoolers in a Norwegian population-based study when their parents have symptoms of borderline, antisocial, and narcissistic personality disorders: at the mercy of unpredictability.” Child & Adolescent Psychiatry & Mental Health. 2012; 6:19. doi: 10.1186/1753-2000-6-19, pp. 18-19 of 24.

[8] Eddy, B. and Kreger, R. Splitting: Protecting Yourself While Divorcing Someone with Borderline or Narcissistic Personality Disorder, 2nd Ed. Oakland, CA: New Harbinger Press, 2021, 49.

[9] Eddy, B. High Conflict People in Legal Disputes, 2nd Ed., Scottsdale, AZ: Unhooked Books, (2016), 28.

[10] Hoffman, C. et al, “Webinar: The Resist/Refuse Dynamic: A View from Mental Health Professionals, Bench & Bar,” California Lawyers Family Law Section, January 31, 2023.

[11] Sparta, S. N. and Koocher, G. P., Editors, “Chapter 9: Assessing Child Sexual Abuse Allegations in a Legal Context,” Forensic Mental Health Assessment of Children and Adolescents, New York: Oxford University Press, (2006), 130.


BILL EDDY, LCSW, ESQ. is the co-founder and Chief Innovation Officer of the High Conflict Institute in San Diego, California. He pioneered the High Conflict Personality Theory (HCP) and is viewed globally as the leading expert on managing disputes involving people with high conflict personalities. He has written more than twenty books on the topic and has taught professionals in the U.S. and more than ten countries.

Share This Post

Recommended Articles

Lorem ipsum dolor sit amet, consetetur sadipscing elitr, sed diam nonumy eirmod tempor invidunt ut labore et dolore magna aliquyam erat, sed diam voluptua.

The Dangerous Bias in Fabulous Reports   © 2024 Jenni McBride McNamara, LMFT, PC Intro from Bill Eddy This month...