The Blank Slate

1. The Ideal of Impartiality

 Being a ProActive Arbitrator means, first and foremost, being a neutral with an active strategy for enhancing impartiality.

Before developing your own strategies and exercises for enhancing impartiality, it is important to clearly identify the goal. What does ‘enhanced impartiality’ actually look like?

 The answer is the Blank Slate.

 When listening to testimony, an arbitrator should aspire to make her mind a blank slate, without pre-judgment of the testimony based upon how the testifier looks or sounds, their physical appearance, their accent, their age, their dress, their level of education, or whether their testimony has been heard previously by the arbitrator.   

 The goal is to strip down the testimony to its core, the raw data; the individual words being spoken.

 Once a neutral has done everything in his power to listen to the witness impartially, to receive the raw data as a blank slate, only then can he apply his knowledge and experience regarding the law and circumstances. But before the experience layer is applied, the neutral owes it to the parties, and the process, to do everything in his power to receive the testimony as raw data, without judgment or critique.  

2. Awareness: Listening vs. Analyzing

 The default way we listen to testimony—the default way we listen to most things in life—is to hear and to analyze at the same time.

 This is evolutionarily advantageous. A hunter-gatherer who hears a sound in the distance is immediately analyzing whether the sound is a threat to his safety, or an opportunity to secure his dinner. Human beings listen to external stimuli and, automatically, experience gut reactions or pre-judgments about the stimuli, based upon previous experiences. 

 I used to be a trial lawyer. For thirty years, my job involved listening to opposing counsel while simultaneously thinking about how to react to what was being said, bringing all my previous experience to bear. Doing my job well involved hearing and analyzing at the same time.

 As arbitrators, the opposite is true. A neutral will be better at her job if she slows down these mental processes. Impartiality will be enhanced by separating the listening and the analysis, for the simple reason that our powers of perception are diminished when our mind is engaged in a complex task. When listening to testimony, a neutral’s goal should be to dedicate all conscious effort to the activity of listening itself, noticing any reactions or analyses that arise as thoughts, and setting aside these reactions in order to re-focus all attention on the testimony itself.    

This is not a wholly original idea. While it may sound like a novel concept in the context of arbitration, it is a habit of mind that has been cultivated and disseminated for centuries in the context of meditation. Psychiatrist and author Mark Epstein provides a lucid and precise description of this mental practice in Thoughts Without a Thinker:

 “Pay precise attention, moment by moment, to exactly what you are experiencing, right now, separating out your reactions from the raw sensory events. This is what is meant by bare attention: just the bare facts, an exact registering, allowing things to speak for themselves as if seen for the first time, distinguishing any reactions from the core event.”[1]

 This is exactly how a neutral should approach testimony. The goal is to become skilled at filtering out reactions that arise in the mind while the testimony is being heard, so that the pure facts of the testimony can be absorbed as naked data on a blank slate. This is what impartiality is. 

 Only after the testimony has been heard, can the experience layer be applied, and analysis commence, in order to reach a judgment/award.

 

3. An Example

 As a neutral, it is not uncommon to hear testimony from the same expert witness delivered in separate arbitrations. An experienced arbitrator recently expressed frustration that a lawyer always hired the same expert witness, who provided the “same testimony,” each time.

 First, it is a mistake to assume or anticipate what is going to be said. A neutral must strive to listen as if she has never heard the testimony or the witness before. When she sees a witness’s familiar face, the neutral must strive to hear the testimony without prejudgments, without expectation about the words that will come from that witness. 

 Second, even if the testimony is identical, it is being heard in the context of a new arbitration, a new set of facts. The testimony deserves to be heard in the particular context of this case. Neutrals have an ethical duty to strive to listen as if it is the first time. Each time you put your foot in a stream, it is a different stream.  

In this example, not only was the arbitrator pre-judging the witness, but also the advocate who hired the witness. As the prejudgments begin to pile up, what happens to the actual evidence?

 Statutorily, the evidence is required to be heard. One of the very few statutory bases for overturning an award is failing to allow the parties to put on their case. If an arbitrator assumes/pre-judges what is going to be said, without hearing—REALLY hearing—the testimony, the party has not had an opportunity to put on their case.

4. Summary

 The blank slate is an ideal toward which a neutral will perpetually strive. The ability to separate listening from analysis, to notice and filter out pre-judgments, is a habit of mind a neutral can perpetually cultivate and strengthen. Developing this habit in pursuit of this ideal is the aim of many of the exercises practiced by Pro-Active arbitrators.

 Some actors will inevitably object that the idea is unattainable, and the habit of mind is “unnatural” or “unrealistic,” or even at cross-purposes with the neutral’s role of making judgments to reach a just award.   

Pro-Active Arbitration does not endeavor to cleanse the human mind of all judgments and gut-reactions. Such a project is neither possible nor desirable. What Pro-Active Arbitration affirms is that, through habits of introspection and regular cognitive exercises, a neutral can become more cognizant of their pre-judgments, can mitigate the frequency and effect of pre-judgments when they arise, and can significantly enhance their impartiality when listening to testimony.

While there will always be mental processes that are inaccessible to the conscious mind, ample scientific research supports the idea that there are myriad ways to mitigate one’s biases and enhance one’s impartiality. This is not merely desirable, it is the neutral’s ethical imperative. Being impartial is a neutral’s raison d’etre. Being impartial is what a neutral is paid to do. 

 

[1] Epstein, Mark. Thoughts without a Thinker: Psychotherapy from a Buddhist Perspective. Basic Books, 2013.