Introduction to Impartiality Exercises
The strategies of Pro-Active Arbitration work to enhance impartiality across three domains: Baseline Awareness, Procedural Practices, and Personal Patterns of Pre-Judgment.
1. Baseline Awareness
An arbitrator’s baseline awareness is the default mindset with which she listens to testimony and presides over the arbitral process. The goal of the Pro-Active arbitrator is to get her baseline awareness to approach, as closely as possible, the blank slate—the state of mind characterized by active listening without judgment or reaction. All energy is consciously directed toward a moment-to-moment awareness of what is being said.
This is achieved through regular cognitive exercises designed to replace automatic System-1 thinking with slower System-2 thinking. The exercises disrupt normal patterns of thought and train the arbitrator to notice when past experiences give rise to mental heuristics that compromise impartial decision-making. The arbitrator becomes more familiar with the way he receives information and with the workings of his own mind.
Cultivating the blank slate is not easy. It is not a skill that can be “acquired” and then forgotten about. Rather, it is a habit that must be maintained, a mental muscle that should be continually strengthened. For this reason, the cognitive exercises are designed to fit into an arbitrator’s daily life and become a part of a regular routine.
For example, consider this awareness exercise that can be practiced during a daily commute to work. The arbitrator turns the radio to an unfamiliar station and listens to the broadcast as if is a witness giving testimony. The arbitrator’s goal is to simply notice the automatic reactions that arise, and then to return her attention to the “testimony” itself. Perhaps the radio station broadcasts music or conversations she finds uninteresting or irritating. Rather than allowing her attention to follow her own thoughts and feelings of irritation, the arbitrator practices the habit of simply observing those thoughts and feelings, and returning her awareness to her primary task: truly hearing the testimony.
Every individual is unique; different exercises work better for different people. Pro-Active arbitration aims to provide arbitrators with a repertoire of regular exercises, but also to equip arbitrators with the tools for developing their own exercises tailored to their unique lives and experiences.
Read more about Awareness Exercises here.
2. Procedural Practices
In addition to developing a baseline awareness that gets him closer to the blank slate, the Pro-Active arbitrator can implement many procedural practices in the arbitral process to enhance impartiality. Many of these practices involve excluding the disclosure of irrelevant information about witnesses and advocates when that information can easily give rise to in-group and out-group biases.
For example, when expert witnesses cite their credentials, they often disclose the names of their alma maters. Such disclosures can influence, consciously or unconsciously, the weight that the arbitrator gives the testimony or the arbitrator’s underlying attitude as they listen. But the prestige of a witness’s alma mater does not automatically confer credibility on that witness. Any influence that the name of a university exerts on an arbitrator would be the result of a mental heuristic functioning to make a quick pre-judgment, based on a generalization about the quality or character of a large group of people (a particular alumni group). These are precisely the sorts of mental heuristics Pro-Active arbitrators seek to avoid. Thus, a Pro-Active arbitrator should prohibit the disclosure, by a witness or an advocate, of their alma mater. The type of institution where a witness has conducted research may very well be relevant to their testimony, but the name of the institution is not.
Practical Procedures such as these work in tandem with Baseline Awareness exercises. The arbitrator becomes skilled not only at diminishing the power of his reactions to distract him from the job of listening, but he diminishes the volume of information that gives rise to such reactions.
Read more about practical strategies for the enhancing impartiality of the arbitral process here.
3. Personal Patterns of Pre-Judgment
Pro-Active arbitrators also engage in regular exercises aimed at identifying and mitigating their own personal patterns of pre-judgments.
Arbitrators, like all human beings, are subject to biases, and these biases give rise to pre-judgments and automatic intuitions (System-1 thinking) that compromise impartiality. However, a vocation as an arbitrator is a commitment to impartiality. Arbitrators have a professional and ethical imperative to undertake a rigorous and sustained investigation of the way that biases manifest themselves in their own minds and lives.
Many scientific studies indicate that, once an individual’s biases are identified and articulated, the effect of the bias on decision-making can be mitigated. And once a bias is identified, additional ameliorative strategies, such as priming, can target that bias.
For example, consider the case of an arbitrator who notices that, while he generally harbors a cautious skepticism when he hears a shocking statistic, his skeptical impulse is more likely to be activated when he hears a statistic cited by a dark-skinned woman than when he hears one cited by a light-skinned man. The arbitrator has identified a pre-judgment linking racial and gender presentation to competence or trustworthiness in the realm of statistics or reasoning.
One of the simplest and quickest ways to mitigate such a pre-judgment is for the arbitrator to increase his exposure to examples running counter to the pre-judgment. For instance, the arbitrator could set his computer background to images of black women who are accomplished and lauded in their fields. (For the arbitrator who struggles to compile such a list, some initial internet research is all it takes to begin remedying this blind spot in one’s knowledge and mitigating one’s biases.) Another method would be to create a twitter or other social media account to follow black women whose tweets are admired for their reasoning and intellectual rigor. Such an exercise could be targeted at any number of observed pre-judgments, whether they are tied to ethnicity, gender, age, religion, physical appearance, etc. The arbitrator creates a flow of information into his daily life, expressly designed to disprove and mitigate his System-1 assumptions and pre-judgments, altering his old mental models.
Additionally, many scientific studies have shown that communal and societal stereotypes can influence our thinking, even when we consciously reject those stereotypes because we know them to be inaccurate, unjust, or grounded in long-standing collective prejudices. Thus, even the most sustained and attentive investigation of our pre-judgments may not result in a complete accounting of them. For this reason, Pro-Active arbitration also encourages exercises and interventions designed to mitigate widespread societal stereotypes. Diversifying the viewpoints to which one is exposed in day-to-day life is beneficial, because one becomes accustomed to listening to, considering, and valuing the viewpoints of people outside one’s social “bubble” or “in-group.”
Read more about exercises for identifying and mitigating individual pre-judgments here.
4. A Holistic Approach
While it is helpful to discuss each domain individually, it is also important to understand that all three domains are interrelated and overlapping. The exercises and approaches outlined in one area will naturally influence the pursuit of impartiality in the others. For example, regular Awareness Exercises that involve observing mental reactions to unfamiliar stimuli can only help an arbitrator in her efforts to identify her own individual pre-judgments and develop practical procedural guidelines for enhancing impartiality.