Fifty Years of Cognitive Science and Decision-Making

Running Head: FIFTY YEARS OF COGNITIVE SCIENCE AND DECISION-MAKING
Fifty Years of Cognitive Science and Decision-Making:

Implications for the AFCC Community
Nancy W. Olesen, Ph.D.

Independent Practice
San Rafael, CA
[email protected]
Leslie M. Drozd, Ph.D.

Independent Practice
Newport Beach, CA
[email protected]
Michael A. Saini, Ph.D.

Professor
Univ. of Toronto, ON, Canada
[email protected]>
Hon. Marjorie Slabach (ret.)

San Francisco, CA
[email protected]
Abstract
Even years of experience and practical wisdom of the family law practitioner may not fully help
to arm against the vulnerabilities to bias and errors in procedures and in thinking. Cognitive
research in recent decades has demonstrated systematic tendencies in human thinking that lead to
predictable errors in decision-making. This paper will highlight this robust and impressive
literature about systematic thinking errors and its impact on decision-making. Specific
connections to the context of family law will be made drawing on case examples. The paper will
give concrete tools for reflecting on these biases and for developing checklists to better identify
and mitigate biases and simplified thinking.
Olesen, Drozd, & Saini (2013). AFCC, Los Angeles, May 2013
FIFTY YEARS OF COGNITIVE SCIENCE AND DECISION-MAKING
PARENTING PLAN
& CHILD CUSTODY
EVALUATIONS
Using Decision Trees to

Increase Evaluator Competence
& Avoid Preventable Errors
Leslie M. Drozd
Nancy W. Olesen
Michael A. Saini
Author’s Note: The impetus for this article was birthed from a new book:
Drozd, Olesen, & Saini (2013). Parenting Plan and Child Custody Evaluations: Using Decision
Trees to Increase Evaluator Competence and Prevent Avoidable Errors. Professional Resource
Press: Sarasota, FL.
http://www.prpress.com/Parenting-Plan-Child-Custody-Evaluations-Using-Decision-Trees-to-
Increase-Evaluator-Competence-Avoid-Preventable-Errors_p_280.html
2
Fifty years of cognitive science and decision-making:

Implications for the AFCC community
A recent finding illustrated that preventable medical errors lead to the death of 100,000 people
every year in the US (the equivalent of a Boeing 737 crashing every day). In settings with
critical complex systems operated by humans, such as nuclear power plants and aircraft,
designers have developed systems that work with human tendencies and expectations so that
they are more likely to be efficient and safe. From the design of controls to the mandated use of
checklists, procedures have been implemented to reduce error and improve competence.
One example of error is called selective inattention, in which the person is so focused on
once aspect of the environment or the problem that he or she is blind to another factor, which
would otherwise be completely obvious. One place this is demonstrated is in airline mid-air
collisions, where some version of selective inattention almost always has been operating. The
pilot has been concentrating of some aspect of the flight data and failed to look around for
obvious problems like the proximity of another plane.
Family law practitioners (e.g. judges, lawyers, mental health professionals, etc.), being
human, are at least as likely to make serious and potentially catastrophic errors in our work as
hospitals and physicians are in theirs. Family law practitioners need to recognize that we are
vulnerable to the same predictable errors in observation, memory, thinking, and decision making
as all other humans in these other areas.
Recent controversies about the reliability and validity of programs and services within
family law emphasize the importance of considering both the potential benefits and harm when
making decisions regarding the lives of children and families involved in family courts. Errors in
decision-making in family law matters can change the lives of children and families in negative
ways. These errors are very rarely made by professionals who are evil, incompetent, or corrupt,
3
as some vocal family court critics might assert. But instead, the mistakes are the product of basic
cognitive errors that have been identified and described for decades in the cognitive
psychological literature. As is true in other settings, the solution to the minimization of cognitive
errors is recognizing them and creating systems to counteract them.
Decision Making
The cognitive revolution in psychology that took place over the last 50 years gave rise to an
extensive empirical literature on cognitive biases and errors in decision-making, but this advance
has been ponderously slow to enter the family court arena. Evaluators within family law have
clung to normative models of clinical decision-making, despite many concerns about the quality
of these decisions. For example, repeated evidence has shown that mental health professionals
have a particularly poor ability to reason intuitively about probabilities (Munro, 2004). Mental
health professionals who perform second opinion reviews of parenting plan evaluations see
instances of these errors in reasoning and decision-making. There is now ample evidence of the
frailty of the human intellect and its vulnerability to cognitive illusions and biases (Tversky and
Kahneman, 1974, Kahneman, 2011). As stated by Fish, Monro and Bairstow (2008), “one of the
most common, problematic tendencies in human cognition ... is our failure to review judgments
and plans – once we have formed a view on what is going on, we often fail to notice or to
dismiss evidence that challenges that picture” (p. 9).
Cognitions and Decision Making
Cognitive science and the study of systematic thinking errors have important insights into why
family law practitioners get stuck in biases, binary thinking and rigid perceptions. Once these
distortions and biases are cemented either in a particular case or in a comfortable set of
4
procedures, they can be difficult to change. These thinking errors are of course not limited to
the family law professional as there exists a universal human tendency to make predictable errors
in thinking. In 1993 Kleinmuntz and Schkade noted two decades of research that had emphasized
the shortcomings of human judgement and decision-making processes. We have so much to
learn from this important literature that could help us see complex cases differently.
Clinical judgements play a role in almost all clinical evaluations made by mental health
professionals who conduct forensic evaluations. The use of clinical judgment in the forensic
arena can be fraught with problems (Borum, & Otto, et al., 1993). Martindale (2013; in press)
has written about the problems that arise from using previously learned methods and skills in
new settings, without consideration for the ways that the well-learned procedures may lead to
errors when they are not completely applicable. Professionals should be aware of these problems
and take steps to address them. These include the problems of inaccuracy from overreliance on
memory and problems with retrieval of information, including lack of attention to problems of
recency and primacy. Memory is fallible and humans are most likely to recall the first piece of
information they learned (primacy) and the last piece (recency). Other cognitive errors include
potential limitations in complex configural analysis and underutilization of base rates,
confirmatory bias, misestimation of covariation (or mistaking correlation with causation),
hindsight bias, overconfidence, overreliance on unique data, and confusion of fact and statistical
artifact.
Colwell (2005) found that human beings use a variety of cognitive heuristics, or mental
shortcuts, in processing the information that they encounter every day. Although these tools can
be useful in simplifying complex events, they can lead to serious errors in logic and reasoning
when they replace the deeper, more controlled and logical processing that is needed in certain
5
decision making contexts. The influence of heuristics on determinations of guilt, sentencing,
negligence claims and awards, jury instructions to disregard evidence, investigative interviewing,
and juror's weighting of evidence was reviewed, and various strategies for reducing the impact of
these biases in the legal forum are discussed.
The use of heuristics and of short-cuts of many kinds and the established difficulty of
thinking in logical and complex ways may lead legal professionals (like everyone else) to be
sloppy in their thinking, to not notice that they have formed preliminary opinions and then
operated out of confirmatory bias thereafter, or that they have "anchored" their thinking in a pet
theory or perhaps a most recent case, or made many other possible cognitive errors (see Table 1).
Table 1. Types of cognitive biases
Selective evidence/confirmation bias: We tend to gather facts that support certain conclusions
but disregard other facts that support different conclusions.
Premature termination of evidence: We tend to accept the first alternative that looks like it
might work. Conflicting evidence is often not discounted but apparently just ignored (Munro,
1996).
Wishful thinking or optimism bias: We tend to want to see things in a positive light and this
can distort our perception and thinking. We tend to provide recommendations as if the parties
will live happily ever after
Choice-supportive bias: We distort our memories of chosen and rejected options to make the
chosen options seem more attractive.
Recency bias: We tend to place more attention on more recent information and either ignore or
forget more distant information (Plous, 1993).
Repetition bias: A willingness to believe what we have been told most often and by the
greatest number of different sources.
Dichotomous thinking: We get stuck in validating specific claims rather than looking at big
picture issues
Source bias: We reject something if we have a bias against the person, organization, or group
to which the person belongs: We are inclined to accept a statement by someone we like.
6
Incremental decision-making and escalating commitment: We look at a decision as a small

step in a process and this tends to perpetuate a series of similar decisions.
Illusion of control: We tend to underestimate future uncertainty because we tend to believe we

have more control than we have in reality.
In making everyday judgements, people take mental shortcuts. If they were perfectly
rational, they would carefully consider all the relevant evidence before reaching a conclusion. In
daily life, however, they would be paralyzed by the effort to think deeply about everything small
and large. In addition, some assessments may be better made quickly and intuitively, for
example, a judgment about how fast a car is approaching when one is crossing the street.
Logical analysis is too slow for such assessment and decision-making (“do I need to leap out of
the way or not?”).
Emotions and Decision Making

In the cognitive psychology literature, many researchers have explored complex effects
of emotion on decision-making and reasoning, with emotion sometimes hindering normatively
correct thinking and sometimes promoting it (Blanchette & Richards, 2010). There are also
important effects of emotion on reasoning style. The authors suggest that focusing on some of
the constituent mechanisms involved in interpretation, judgement, decision making and
reasoning provides a way to link some of the diverse findings in the field.
Oatley and Jenkins (1996) note that emotions bias cognitive processing during judgment
and inference, giving preferential availability to some processes over others. For example,
happiness improves creative problem solving (Isen, Daubman, & Nowicki, 1987); anxiety
restricts attention to features of a situation concerned with safety and danger; and sadness
prompts recall from memory of incidents of past comparable sadness. These emotional biases
7
provide the basis for both normal functioning and for disordered emotional processing (Mathews
& MacLeod, 1994).
Blanchette and Richards (2010) examine whether affect influences higher-level cognitive
processes. They reviewed research on the effect of emotion on interpretation, judgement,
decision-making, and reasoning to explore whether there is evidence that emotion affects each of
these processes, and secondly what mechanisms might underlie these effects. Their review
highlighted the fact that interpretive biases are primarily linked with anxiety, while more general
mood-congruent effects may be seen in judgment. There are also important effects of emotion on
reasoning style.
Buontempo (2005) explored the relationship between emotional intelligence (perceiving
emotions, using emotions to facilitate thought, and understanding emotions) and decision-
making. Using a sample of 150 graduate students and employees in a variety of organizations,
the authors found a significant relationships between emotional intelligence and cognitive biases
and that a lack of emotional awareness can inhibit effective decision making and bias judgement.
Davies and Turnbull (2011) presented a study that investigated the conflict between well-
developed attitudes and emotional reactions towards gambling. These results suggest
unaddressed emotional biases are readily harmful in complex decision-making. Higher levels of
emotions can reduce the flexibility to consider various options in decision making, this
supporting the hypothesis that emotional influences can decisions.
Intuitive and analytical reasoning
Hammond (1996) distinguished between intuitive and analytical reasoning. Intuitive
reasoning typically is: “a cognitive process that somehow produces an answer, solution or idea
8
without the use of a conscious, logically defensible, step-by-step process” (p. 60). Analytic
reasoning is characterized as “a step-by-step, conscious, logically defensible process” (p. 60).
Although these are often considered dichotomous, each has their respective merits and risks.
Analytic reasoning has the advantage of being clear and explicit about how it reaches a
conclusion. It is identified with a systematic process of using logic and rigorous processes that
can be defended by reference to valid, reliable standards. The law, including family law, is based
on analytic thinking and relies upon this reasoning in legal decisions. Those who argue against
analytic thinking argue that too much is claimed for it; in complex situations, there will always
be too many unknown variables to disturb the picture and to falsify the precise predictions of
analytic reasoning based only on the known variables.
Intuition, on the other hand, is associated with creativity, imagination and imagery. The
strengths of intuition are displayed in situations needing a rapid digest of numerous factors, such
as in human interactions. But there should be caution in using only intuition in making complex
decisions. As Hammond (1996) points out, “no one can read through the literature of social
psychology from the 1960s through the 1980s without drawing the conclusion that intuition is a
hazard, a process not to be trusted, not only because it is inherently flawed by ‘biases’ but
because the person who resorts to it is innocently and sometimes arrogantly overconfident when
employing it.” (p. 88) Hammond (1996) suggested that the two dimensions of reasoning should
be seen as existing on a continuum, not as a dichotomy. He argued that questions about which is
better can only be answered relative to a particular context and task.
In debates about the nature of knowledge and skill, those advocating a scientific approach
exemplify the analytic tradition while their opponents have argued that practice must rest on
intuitive and empathic understanding of our fellow humans (Munro, 1998).
9
Research in psychology has shown that all people tend to prefer imperfect but easier
ways of reasoning. They create rules that reduce difficult judgmental tasks to simpler ones by
restricting the amount of information they consider. These rules are good enough in many
everyday circumstances but, in some more demanding circumstances, they lead to: “large and
persistent biases with serious implications for decision-making” (Kahneman, Slovic, & Tversky,
1982, p. 464).
Bell and Mellor (2009) explored issues that are relevant to the judgements routinely made
by clinical psychologists. They first considered the relative merits of clinical and statistical
approaches to decision-making and note that although much of the empirical evidence
demonstrates the greater accuracy of statistical approaches in making judgements (where
appropriate methods exist), they are rarely routinely used. Instead, clinical approaches to making
judgements continue to dominate in the majority of clinical settings. Second, common sources of
errors in clinical judgement are reviewed by those authors, including the misuse of heuristics,
clinician biases, the limitations of human information-processing capacities, and the overreliance
on clinical interviews. Finally, some of the basic strategies that can be useful to clinicians in
improving the accuracy of clinical judgement were described. These include advanced level
training programs, using quality instruments and procedures, being wary of overreliance on
theories, adhering to the scientist practitioner approach, and being selective in the distribution of
professional efforts and time.
Decision Making Errors in Family Law

Parenting plan evaluations include both intuition and analysis. Evaluators use intuitive
processes when interviewing and observing parent-child relationships, and also consider analytic
10
conclusions to understand the underlying basis for these decisions based on intuition and for
assessing the validity of them as well as those decisions based on logical analysis.
There are common issues that can be problematic when making decisions in family law
matters (see Table 2). For example, legal professionals can make the competing claims of the
parties equivalent, and, in so doing, dismiss both sides. This can happen, for example, when
domestic violence allegations are countered by allegations of hostility, restrictive gatekeeping,
and alienation. When the professional reaches the point of feeling, (or in rare cases writing) the
equivalent of Shakespeare’s “A pox on both their houses”, then the decisions are unlikely to be
useful to anyone.
Table 2: Systematic Errors Relevant to Family Law
Name of Flaw Description of the Flaw

Pox on both their The evaluator makes the competing claims of the parties
houses” flaw equivalent, and dismisses both sides.
“Everyone should be The evaluator does not consider or account for religious, ethnic,
like me” flaw or cultural differences between the family and him or her.

Pollyanna flaw The evaluator gets weighed down by the seriousness of the
problems and retreats into a superficial recommendation that
does not account for the data in the report.

Jerry Springer flaw The evaluator focuses in detail on the parents and their
allegations, with little or no attention on the child’s needs or
relationships.

Tunnel-vision flaw The evaluator considers one or two concerns and drops all others
as though they never existed.

Arrogance of The evaluator uses training as a clinician in family systems or
experience flaw psychoanalytic theory, without looking at the psycho-legal issues
and using forensic tools and understandings.

This-is-probably - The evaluator lets pressures about time or money lead to limits
good-enough flaw on the necessary scope of the evaluation.

No-one-can- The evaluator does not control input from the attorneys,
influence-me flaw including attempts to frame the issues, believing he or she is
invulnerable to influence.

11
Trust-Me! flaw The evaluator does not maintain transparent methods and record
keeping.

It’s not me, its you The evaluator has unexamined personal reactions to the issues or
flaw the people that interfere with objectivity.

Confusion flaw The evaluator fails to manage the complexity in the case and
becomes overwhelmed.
We must safeguard against the tendency to find simple solutions for complex problems.
There are many factors that make child custody disputes complex:
1) There is a matrix of vague, complex and contradictory legislation, policies and legal
case laws that often govern practice. Concepts, such as the Best Interest Test, maximum contact,
status quo, presumptions etc. are important but cannot be applied simply and directly in all cases
and in every circumstance, thus requiring the evaluator to consider case based circumstances
within a larger context of family law policies (Emery, Otto, & O’Donohue, 2005; Krauss &
Sales, 2000);
2) There continues to be an undeveloped state of child custody behavioral science and
empirically validated procedures to guide our work;
3) There remains a lack of consensus on a uniform methodological approach, although
evaluations processes are becoming more uniform over time. Tippins and Wittman (2005)
suggest that when practice loses its root in evidence, opinions and recommendations tend toward
decisions that are more socio-moral and personal than clinical.
Fifty years of cognitive research suggests that people tend to gravitate towards the
simplistic, dramatic, the first, or the last information received about a subject or decision. Legal
professionals are not immune from tendencies to engage in cognitive errors. In addition, most
child custody disputes have both complicated factors (many factors that may be contributing to
the family dysfunctions) and complex factors (factors that intersect with and affect each other).
12
Therefore, it is not sufficient to think of factors in isolation. Solutions will be missed if one looks
at, for example, violence in isolation OR alienation OR attachment in isolation. The whole
picture is missed if one concentrates only on insensitive parenting OR high conflict. In order to
have a clear picture of the family, one must look at the whole picture, not a part of it, at the
interplay among these factors and not the factors in isolation.
Implications of Cognitive Sciences on Decision Making in Family Law
Cognitive science offers family law a plethora of research – research on memory,
research on how inferences are made, and the effect of following “rules of thumb” or heuristics.
All of these have immediate relevance for decision making by parenting plan evaluators and
family law mediators, attorneys, and judges.
Memory is subject to many errors. For one important example, observations made during
home visits that are not recorded can be subject to a loss of the information, even if written down
immediately after the visit. We are also likely to remember the most salient and dramatic facts,
either because they have personal meaning to us or they are sensational and emotionally
provocative. The most easily recalled facts might not be all the facts that need to be remembered
and considered or even the most important. Family law decisions are flawed when specific and
important information is left out or ignored because the mental health professional did not
remember it.
In addition to memory issues, which involve retrieval of information, there are issues
with how the information is stored in the first place—as inference/conclusion rather than as
observation. The problem with inferences arises from the human need to make sense of what is
observed. Without conscious and logical effort, mental health professionals and others may
13
make inferences about what is seen, heard, and read and then store these observations in that
form, losing track of the facts on which the inferences were made. A common way this occurs
can be seen in what may be called “behavioral observations” but when looked at more closely,
they are actually conclusions. For example, take the statement, “Mother and child showed a
warm attachment relationship.” That is not a behavioral observation. It is a conclusion. And then
take the statement, “Mother sat close to the child on the floor and they made frequent eye
contact, smiling at the same time, with mother responding to child’s requests for help with the
project.” That is indeed a behavioral observation.
The effect of cognitive errors is almost always manifest as the absence of transparency
and that is true for unrecognized inferences. With inferences that are not anchored in the
observations, the reader of a report will not know the basis for the professional’s opinion. One
problem that can occur here is that months down the line the evaluator will not be able to
remember what she or he saw or heard that led to the opinion that the relationship was one filled
with warmth. And further, the consumer of the report including the court will not know what
actually was seen or heard that lead to the inference that there was warmth in the relationship.
When observations and inferences are intertwined, the original data is lost forever.
Unrecognized inferences can be seen as another form of intuitive reasoning. The effect of
reliance on quick intuitive “takes” on a person or a situation is often “confirmatory bias” in
which the evaluator forms an opinion very early in the case or in interactions with the parents
and then searches for or selectively attends to data that confirm that original opinion.
(Martindale, 2005)
Safeguarding the Process Against Biases and Errors
14
The psycholegal professions need to move from an overgeneralizing and simplistic
approach to complex cases. There is a need for a framework to embrace the complexity of
custody dispute cases while trying to understand the interconnections between the factors that
make these cases so complex. Decision trees can help with both—figure out what data mental
health professionals need to collect for the issues in the particular case and how to organize and
think about the mountain of data after it is collected. A sample decision tree that illustrates how a
parenting plan evaluation can be conducted to increase evaluator competence and avoid
preventable errors follows in the Appendix A.
Hints and Suggestions
We propose the following hints and suggestions based on the evidence on how best to safeguard
against cognitive errors (Arkes, 1986; Croskerry, 2002, 2003a, 2003b; Fischhoff, 1982; Plous,
1993; Slovic & Fischhoff, 1977).
• Develop insight/ awareness: Carefully consider the potential for cognitive biases,
together with multiple clinical scenarios that can illustrate the impact of cognitive
biases and the adverse effects on decision-making. Cultivate humility and question
yourself – in a systematic and methodical way.
• Consider alternatives: Establish forced consideration of alternative possibilities e.g.,
the development and working through of a decision tree and revise as needed by
routinely asking the question: What else might this be?
• Metacognition: Train for a reflective approach to problem solving: stepping back
from the immediate problem to examine and reflect on the thinking process.
• Decrease reliance on memory: Improve the accuracy of decision making through
15
cognitive aids: note taking, use of checklists, decision tree templates.
• Specific training: Identify specific flaws and biases in thinking and provide directed
training to overcome them (e.g., understanding fundamental rules of probability,
distinguishing correlation from causation),. In the justice system, it might include
regular audits of decisions at various points, and ongoing monitoring of data
regarding relative ratios of race, gender, and age, and other groups that experience
bias.
• Simulation: Develop mental rehearsal, ‘‘cognitive walkthrough’’ strategies for
specific clinical scenarios to allow cognitive biases to show themselves and their
consequences to be observed. Construct clinical training videos contrasting incorrect
(biased) approaches with the correct unbiased approach.
• Make task easier: Provide more information (from multiple collateral sources) about
the specific problem to reduce task difficulty and ambiguity. Make available matrices
for clear and well-organized display of information .
• Minimize time pressures: Provide adequate time for quality decision- making.
• Feedback In court situations that allow feedback or in training new evaluators,
provide as rapid and reliable feedback to evaluators as possible so that errors are
immediately appreciated, understood, and corrected.
• Checklists. Developing and employing checklists at various key decision points can
encourage less biased decisions by providing an objective framework to assess your
thinking and subsequent decisions.
• Look to other fields. Although implicit bias has some history in psychology and the
law, it is important to remember that business, education, and medicine all have
16
explored the effects of social cognition and implicit bias on organizational
functioning, and we can learn much from them as we move forward in our own
efforts.
Summary and Conclusions
The hints and suggestions just described can be found in a new Professional Resource,
Inc. book, Parenting Plan and Child Custody Evaluations: Increasing Evaluator Competence and
Avoiding Preventable Error (Drozd, Olesen, & Saini, 2013). In this book, the authors have
presented practical tools including checklists and decision trees designed at assisting the
evaluator make better decisions by employing that which we have learned from fifty years of
cognitive science. A sample of those checklists can be found in Appendix B and Appendix C.
17
References
Ariely, D. (2008). Predictably Irrational: The Hidden Forces That Shape Our Decisions,
HarperCollins
Arkes HA. (1986). Impediments to accurate clinical judgment and possible ways to minimize
their impact. In: Arkes HR, Hammond KR (eds). Judgment and Decision Making: An
Interdisciplinary Reader. New York: Cambridge University Press, 1986: 582–92.
Bell, I., & Mellor, D. (2009). Clinical judgements: Research and practice. Australian
Psychologist, 44, 112–121.
Blanchette, I. and Richards, Anne (2010) The influence of affect on higher level cognition: A
review of research on interpretation, judgement, decision-making and reasoning.
Cognition & Emotion 24 (4), pp. 561-595.
Borum, R., R. Otto, & Golding, S. (1993). Improving clinical judgment and decision making in
forensic evaluation. Journal of Psychiatry & Law 21(1): 35-76.
Buontempo G. (2005). Emotional Intelligence and Decision Making: The Impact on Judgment
Bias. Dissertation Abstracts International Section B. The Sciences and Engineering 66(5-
B):2863.
Colwell, L. H. (2005). Cognitive Heuristics in the Context of Legal Decision Making.
American Journal of Forensic Psychology 23(2): 17-41.
Croskerry P. (2002). Achieving quality in clinical decision making: cognitive strategies and
detection of bias. Acad Emerg Med. 9:1184–1204.
Croskerry P. (2003a). Cognitive forcing strategies in clinical decision-making. Ann Emerg Med.
41:110–20.
Croskerry, P. (2003b). The importance of cognitive errors in diagnosis and strategies to minimize
them. Academic Medicine, 78(8), 775-780.
Davies, J. L. & O. H. Turnbull (2011). Affective bias in complex decision-making: Modulating
sensitivity to aversive feedback. Motivation and Emotion 35(2): 235-248.
Dunning, D., Johnson, K., Ehrlinger, J., & Kruger, J. (2003). Why people fail to recognize their
own incompetence. Current Directions in Psychological Science, 12 (3), 83–87.
Ehrlinger, J. & Dunning, D. (2003). How Chronic Self-Views Influence (and Potentially
Mislead) Estimates of Performance. Journal of Personality and Social Psychology, 84 (1),
5–17.
Ehrlinger, J., Johnson, K., Banner, M., Dunning, D., & Kruger, J. (2008). Why the unskilled are
unaware: Further explorations of (absent) self-insight among the incompetent.
Organizational Behavior and Human Decision Processes, 105, 98–121.
Emery, R. E., Otto, R. K., & O’Donohue, W. T. (2005). A critical assessment of child custody
evaluations. Psychological Science in the Public Interest, 6, 1–29.
Finkelstein, S., Whitehead, J., Campbell, A. (2009). Think Again: Why Good Leaders Make Bad
Decisions and How to Keep It from Happening to You Harvard Business Review Press
Fischhoff B. Debiasing. In: Kahneman D. Slovic P. and Tversky A (1982). Judgment under
Uncertainty: Heuristics and Biases. New York: Cambridge University Press.
Fish, S., Munro, E. and Bairstow, S. (2008) Learning together to safeguard children: developing
a multi-agency systems approach for case reviews, London: Social Care Institute for
Excellence. (available online at http://www.scie.org.uk/publications/reports/report19.pdf)
Hammond, K. (1996). Human judgment and social policy. Oxford, England: Oxford University
Press.
18
Isen, A. M., Daubman, K. A., & Nowicki, G. P. (1987). Positive affect facilitates creative
problem solving. Journal of Personality and Social Psychology, 52, 1122-1131.
Kahneman, D. (2011). Thinking, Fast and Slow. Farrar, Straus and Giroux
Kahneman, D., Slovic, P., & Tversky, A. (Eds.) . (1982). Judgment under uncertainty: Heuristics
and biases. New York : Cambridge University Press.
Kleinmuntz, D. N., & Schkade, D. A. (1993). Information displays and decision processes.
Psychological Science, 4(4), 221–227.
Krauss, D. A., & Sales, B. D. (2000). The problem of “helpfulness” in applying Daubert to
expert testimony: Child custody determinations in family law an exemplar. Psychology,
Public Policy, and Law, 5(1), 78–99.
Kruger, J. & Dunning, D. (1999). Unskilled and Unaware of It: How Difficulties in Recognizing
One's Own Incompetence Lead to Inflated Self-Assessments. Journal of Personality and
Social Psychology, 77 (6), 1121–34.
Mathews, A., & MacLeod, C, (1994). A Cognitive approaches to emotion and emotional
disorders, Annual Review of Psychology, 45, 25-50.
Martindale, D. A. (2005). Confirmatory Bias and Confirmatory Distortion. Journal of Child
Custody 1(2), 31-48.
Martindale, D.A. (2013a). Cognitive encapsulation: Thinking inside the box. The Matrimonial
Strategist, 31(3),3-5.
Martindale, D.A. (in press). From treatment provider to evaluator: Overcoming cognitive
encapsulation. The Journal of Child Custody: Research, Issues, and Practices, X (2).
Mauboussin, M.J. (2009). Think Twice: Harnessing the Power of Counterintuition, Harvard
Business Review Press
Munro, E. (2004) A simpler way to understand the results of risk assessment instruments.
Child and Youth Services Review, 26 (9) pp. 873-883
Oatley, K., & Jenkins, J. ( 1996). Understanding emotions. Cambridge, MA: Blackwell.
Plous S. (1993). The Psychology of Judgment and Decision Making. Philadelphia: Temple
University Press, 1993.
Tippins, T. M., & Wittmann, J. P. (2005). Empirical and Ethical problems with custody
recommendations: A call for clinical humility and judicial vigilance. Family Court
Review, 43, 193–222.
Tversky, A. & Kahneman, D. (1974). Judgment under uncertainty: Heuristics and biases.
Science, 185, 1124-1131
Slovic P, Fischhoff B. (1977). On the psychology of experimental surprises. J Exp Psychol Hum
Percept Perform. 1977;3:544–51.
Thaler, R.H., & Sunstein, C.R. (2008). Nudge: Improving Decisions About Health, Wealth, and
Happiness, Caravan.
19
Appendix A
Decision Tree for Systematic Parenting Plan Evaluations

Preparation and Planning
Prepared and Read Case Documents and Identification of Sources
Referral Initial Interviews
Up to Date for Obtaining Data
Contextual Issues Domains to Consider Decision to Accept Identify Case-Specific Issues Potential Sources
Immediate Physical Safety
Social Science Research Abuse Variables Expertise Allegations of Abuse, IPV, Parties
Professional Standards & Parent Variables Neutrality of Role Alienation, Mental Health Problems, Children
Guidelines Child Variables Conflict of Interest Substance Abuse, Police
Local Rules, Case Laws and Parent-Child Variables Timing / Resources Parenting Competency, Doctors
Statutes Parent-Parent Variables Informed Consents Overnights, Shared Care, School staff
Professional Memberships Environmental / Cultural Purpose and Scope Relocation, etc. Therapists
Consultations
Formation of Initial Hypotheses and Preliminary Decision Tree

Cluster 1 Cluster 2 Cluster 3 Cluster 4 Cluster 5
Data Collection
Interviews with Child(ren), Parties (individually/conjointly), New Partners, Caretakers, Collaterals Parent-Child Observations Court Documents Other Sources
Data Analysis, Synthesis, and Corresponding Recommendations

Question 1 +/- +/- +/- +/- +/- +/- Recommendation
Revise Decision
Tree Question 2 +/- +/- +/- +/- +/- +/- Recommendation
Display data in
multiple hypothesis
statements based on Question 4 +/- +/- +/- +/- +/- +/- Recommendation
the clusters
Reflection, Review, Consultation, and Revision

Complete Checklist, Identify and Report Limitations, Write the Report
Drozd, Olesen & Saini (2013). Parenting plans and custody evaluations: Using decision trees to Increase Competence and
Avoid Preventable Errors. Sarasota, FL: Professional Resource Press.
20
Appendix B. Parenting Plan Evaluator’s Cognitive Error Checklist1
Bias Problems Solutions

Self-interested Is there any reason to Review the report with extra care,
biases suspect that the report especially for over optimism and/or
contains recommendation harsh criticism.
of errors motivated by self-
interest?
Any over Have you fallen in love Look for evidence that does not
commitment to your with your support your recommendations.
recommendations recommendations?
Groupthink Were there dissenting Look for evidence from collateral
opinions within the sources sources that do not support the
of data? common views, and explore how
Were they explored these may impact your overall
adequately? analysis.
Bias of memorable Could your data analysis be Consider how your thoughts of the
data overly influenced by an case may be guiding your analysis.
event or situation that you
consider to be a memorable
success or failure?
Confirmation bias Are credible alternatives The presentation of differing
included along with the information should be separated both
recommendation? In in the analysis and in the presentation
California, the evaluation of findings.
report must include
information that does not
support the conclusions of
the evaluator.
Anchoring bias Do you know how the data Re-anchor with figures generated by
was anchored? Can there other models or benchmarks, and then
be: unsubstantiated conduct new analysis.
numbers? extrapolation
from history? a motivation
to use a certain anchor?
Halo effect Are you assuming that a Eliminate false inferences by seeking
person, organization, or additional comparable examples.
1
Drozd, Olesen & Saini (2013). Parenting plans and custody evaluations: Using decision trees to Increase
Competence and Avoid Preventable Errors. Sarasota, FL: Professional Resource Press.
21
approach that is successful

in one area (and is your
favorite, perhaps) will be
just as successful in
another?
Ways that your Are the recommendations Consider the issue as if you were a
professional history overly attached to a history new evaluator assigned to the case.
with similar cases of past decisions/past
may be impacting behaviors?
your analysis
Overconfidence and Are the recommendations Consider how the family will manage
optimistic biases overly optimistic about the without court monitoring and/or
future? involvement of professionals.
Disaster neglect Is the worst case bad Imagine that the worst has happened,
enough? and develop a story about the causes
and potential solutions to mitigate the
risks.
Loss aversion Are the recommendations Realign recommendations to share
overly cautious? responsibility for the risk or to remove
risk.
22
Appendix C: Parenting Plan Evaluation Checklist (PPEC)2
Case Name: Case Number:

Reviewer: Date(s) of the Review:
Scope Rating Explain Rating
Has the scope of the report been delineated by the court Yes
order and signed stipulation by the parties? No
Cultural Competency Explain Rating
Did the evaluator attend appropriately to the cultural, ethnic, Yes
racial, religious issues in the family and the case? No
Record keeping Rating Explain Rating
Is there a case file complete and transparent? Yes
No
Has there been reasonable care to prevent loss or destruction Yes
of records? No
Communication with litigants Rating Explain Rating
Has each party received all correspondence and documents Yes
associated with this case? No
Ex-parte communication Rating Explain Rating
Have steps been taken to minimize ex-parte communication? Yes
No
Review of policies Rating Explain Rating
Has each party been informed about the policies, procedures, Yes
and fees prior to commencing the evaluation? No
Informed consent of collaterals Rating Explain Rating
Have the collateral been made aware of the potential use of Yes
information they are providing? No
Factors to be assessed Rating Explain Rating
Have all factors that are pertinent to the evaluation been Yes
included in the investigation? No
Use of diverse methods Rating Explain Rating
Has the evaluator used multiple methods and sources of Yes
information to provide multiple data points? No
Has the evaluator contacted all collateral sources identified Yes
by the parties? No
Use of a balanced process Rating Explain Rating
Has the evaluator used a balanced process in order to Yes
increase objectivity, fairness, and independence? No
Use of reliable and valid methods Rating Explain Rating
Have the methods for conducting the evaluation been based Yes
on empirically based procedures of data collection? No
2
Drozd, Olesen & Saini (2013). Parenting plans and custody evaluations: Using decision trees to increase evaluator
competence and avoid preventable errors. Sarasota, FL: Professional Resource Press.
23
Assessment of parenting Rating Explain Rating

Has the assessment included all adults who perform a Yes
caretaking role and/or live in the residence with the children? No
Assessment of children Rating Explain Rating
Has the evaluator followed generally recognized procedures Yes
when conducting interviews with children? No
Has the assessment included each child who is subject to the Yes
evaluation? No
Assessment of adult–child relationships Rating Explain Rating
Was the evaluator mindful of the fact that their presence in Yes
the same physical environment as those being observed may No
have created a risk that could influence the very behaviors
and interactions that they are endeavoring to observe?
Did the evaluator inform the parties the purposes for which Yes
observational sessions were being conducted? No
In-person meetings Rating Explain Rating
Has the evaluator conducted at least one in-person interview Yes
with each parent and with other adults who perform a No
caretaking role and/or are living in the residence with the
child(ren)?
Competency of the evaluator Rating Explain Rating
Has the evaluator conducted assessments in areas that they Yes
are competent? No
Incomplete, unreliable, missing data Rating Explain Rating
Has the child custody evaluator disclosed incomplete, Yes
unreliable, or missing data and the impact on the No
conclusions?
Use of formal instruments Rating Explain Rating
Has the evaluator articulated the bases for selecting the Yes
specific instruments used. No
Team approach Rating Explain Rating
Are all of the mental health professionals competent to fulfill Yes
their assigned roles? No
Dual role issues Rating Explain Rating
Have reasonable steps been made to avoid multiple Yes
relationships with any and all participants of an evaluation? No
Weighting the evidence Rating Explain Rating
Has the evaluator explained how different sources & Yes
different types of information were considered &weighted in No
the formation of their opinions?
Has the evaluator explained the limits and strengths of Yes
applying social science research to this case? No
Interim recommendations Rating Explain Rating
Has the evaluation refrained from making interim Yes
recommendations? No
24
Presentation of findings Rating Explain Rating

Has the evaluator striven to be accurate, objective, fair, and Yes
independent in their work? Does the report appear unbiased No
(neutral) on its face?
Has the evaluator utilized high quality social science Yes
research to support his or her work? No
Has the evaluator refrained from including information in the Yes
report that is not relevant to the issue in dispute? No
Articulation of limitations Rating Explain Rating
Have the limits to the evaluation and the basis for making Yes
recommendations been provided? No
Overall Impressions:
25

Fifty Years of Cognitive Science and Decision-Making

Uploaded by

Copyright:

Available Formats

Fifty Years of Cognitive Science and Decision-Making

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Fifty Years of Cognitive Science and Decision-Making

Uploaded by

Copyright:

Available Formats

Running Head: FIFTY YEARS OF COGNITIVE SCIENCE AND DECISION-MAKING

Fifty Years of Cognitive Science and Decision-Making:

Nancy W. Olesen, Ph.D.

Leslie M. Drozd, Ph.D.

Michael A. Saini, Ph.D.

Hon. Marjorie Slabach (ret.)

Using Decision Trees to

Fifty years of cognitive science and decision-making:

obvious problems like the proximity of another plane.

as all other humans in these other areas.

errors is recognizing them and creating systems to counteract them.

dismiss evidence that challenges that picture” (p. 9).

Cognitions and Decision Making

the shortcomings of human judgement and decision-making processes. We have so much to

potential limitations in complex configural analysis and underutilization of base rates,

confirmatory bias, misestimation of covariation (or mistaking correlation with causation),

decision making contexts. The influence of heuristics on determinations of guilt, sentencing,

these biases in the legal forum are discussed.

Table 1. Types of cognitive biases

Incremental decision-making and escalating commitment: We look at a decision as a small

Illusion of control: We tend to underestimate future uncertainty because we tend to believe we

the way or not?”).

Emotions and Decision Making

of emotion on decision-making and reasoning, with emotion sometimes hindering normatively

the constituent mechanisms involved in interpretation, judgement, decision making and

& MacLeod, 1994).

processes. They reviewed research on the effect of emotion on interpretation, judgement,

Buontempo (2005) explored the relationship between emotional intelligence (perceiving

supporting the hypothesis that emotional influences can decisions.

Intuitive and analytical reasoning

Hammond (1996) distinguished between intuitive and analytical reasoning. Intuitive

reasoning is characterized as “a step-by-step, conscious, logically defensible process” (p. 60).

analytic reasoning based only on the known variables.

better can only be answered relative to a particular context and task.

intuitive and empathic understanding of our fellow humans (Munro, 1998).

demonstrates the greater accuracy of statistical approaches in making judgements (where

professional efforts and time.

Decision Making Errors in Family Law

domestic violence allegations are countered by allegations of hostility, restrictive gatekeeping,

Table 2: Systematic Errors Relevant to Family Law

Name of Flaw Description of the Flaw

2) There continues to be an undeveloped state of child custody behavioral science and

empirically validated procedures to guide our work;

3) There remains a lack of consensus on a uniform methodological approach, although

decisions that are more socio-moral and personal than clinical.

interplay among these factors and not the factors in isolation.

Implications of Cognitive Sciences on Decision Making in Family Law

Cognitive science offers family law a plethora of research – research on memory,

family law mediators, attorneys, and judges.

project.” That is indeed a behavioral observation.

reliance on quick intuitive “takes” on a person or a situation is often “confirmatory bias” in

Safeguarding the Process Against Biases and Errors

The psycholegal professions need to move from an overgeneralizing and simplistic

preventable errors follows in the Appendix A.

Hints and Suggestions

1993; Slovic & Fischhoff, 1977).

yourself – in a systematic and methodical way.

• Consider alternatives: Establish forced consideration of alternative possibilities e.g.,

routinely asking the question: What else might this be?