Awareness & the Limits of Experience

1. Awareness vs. Experience

Many arbitrators have experience as litigators, judges, or neutrals. Such experience can be valuable, as it provides the arbitrator with knowledge of the law and legal proceedings. While such knowledge can assist arbitrators complete awards, knowledge alone will not lead to a fair, impartial process. In fact, in certain situations, it can be the hurdle which must be overcome to attain a proper award.

“The real value of a real education…has almost nothing to do with knowledge and everything to do with simple awareness.” 

-David Foster Wallace   

Awareness is the essential ingredient in cultivating the blank slate. In the context of arbitration, awareness refers to the practice of noticing the contents of our thoughts—all judgments and reactions that arise. Awareness means noticing when analyzing has distracted us from the essential task of listening with bare attention. All the experience in the world will not give rise to an impartial hearing if it is not accompanied by a commitment to hearing the testimony as a blank slate, as if it is the first time.

In fact, experience is also the source of particular dangers to impartiality—dangers that are too often ignored. Many arbitrators point to their years of experience as a source of their impartiality when the reality is that there is no correlation between the two.

In any activity, experience can give rise to complacency, and complacency gives rise to errors. While it is certainly preferable to be an experienced driver than a complete novice, experienced drivers still cause car accidents. Though a driver might know, intellectually, that driving is dangerous and he should remain vigilant, his years of experience behind the wheel without serious incident have taught him the opposite. How many of us have ever eaten, texted, put on make-up, or simply zoned-out while driving? The sum of our past experience can exert a stronger influence on our actions than a simple abstract truth we purport to accept: driving is dangerous.

2. System-1 vs. System-2

To grasp why this is so, it’s useful to divide our thinking into two distinct processes: System 1 and System 2. The division is widely used in psychology, and has recently been popularized by Nobel-Prize winner Daniel Kahneman in Thinking, Fast and Slow:

• System 1 operates automatically and quickly, with little or no effort, and no sense of voluntary control.

• System 2 allocates attention to the effortful mental activities that demand it, including complex computations. The operations of System 2 are often associated with the subjective experience of agency, choice, and concentration. [1]

When asked to solve 2+2, System 1 thinking automatically suggests the answer. It is automatic, requiring no conscious effort because you have already learned to associate “2+2” with the answer “4.”

System 1 thinking is also the source of our automatic pre-judgments, gut reactions, intuitions, and biases. These pre-judgments are informed by the sum of our past experiences, and operate automatically.

We would not be able to live if we did not make unconscious assumptions based upon our past experiences. Think of all the small and necessary decisions you are able to make unconsciously every day—which route to take to work, how to respond to simple questions, whether or not to touch a hot stove or a sharp object. Our brains are meaning-making machines, constantly drawing on our past experiences to help us act in the present. 

 “Mental model” is a widespread term used to describe how our brains process and synthesize our past experiences. Our mental models are not made up solely of strict logical rules, but also include all of our intuitions and emotions about complex situations. As we navigate our daily lives, our mental models furnish us with expectations or assumptions to help us make sense of the world around us. These expectations and assumptions arise immediately and automatically. 

 Our mental models are essential to our survival and they can also lead us into error. Our past experiences, after all, do not always have bearing on the situation at hand. Fortunately, System 2 thinking can influence and override System 1 impulses and associations, so that we may adjust our mental model. Even though experience may have taught a motorist that driving does not require his focused attention most of the time, he can remind himself that driving is indeed dangerous and make an effort to re-direct his attention to the road and his fellow motorists.

3. An Example

Anyone who has spent years working as a judge will inevitably have accrued a set of mental models, full of pre-judgments and automatic impulses, surrounding the law and its application. Judges with crowded dockets seek and rely upon System 1 thinking to get through the daily volume of cases assigned to their court. Often, judges are not afforded adequate time to develop a robust understanding of all the facts in every case; their dockets are over-crowded, and there are often administrative orders requiring cases be resolved within arbitrary time limits. Given these constraints, judges naturally seek to assign assertions and defenses into familiar categories, permitting “more efficient” and time saving rulings. While justice delayed may be justice denied, the same can be said of quick prejudgment based more upon a judge’s past experiences than the unique facts of the case at hand. The less time a judge has per case, the more time saving shortcuts are needed, and the more likely the judge is to consciously and unconsciously rely upon past experience. The past experience a judge relies on might be prior experience with the case’s subject matter, prior experience with the counsel or the counsel’s client, or any number of personal experiences that have given rise to unconscious mental associations between types of people and expected behaviors. With more experience, a neutral is more likely to believe they have seen this sort of case before and anticipate its outcome. With more experience, a neutral is more likely to believe they are already an expert with some aspect of the law and so give short shrift to the experts brought in to discuss it.

4. Accounting for Experience

A Pro-Active arbitrator seeks to mitigate these System 1 pre-judgments by first identifying the pre-judgments they have absorbed through their experiences. Second, a Pro-Active arbitrator practices cognitive exercises to practice overriding System 1 associations with deliberate System 2 thinking.

These exercises are used not only to identify and mitigate prejudgments accrued from experience in a legal context, but automatic associations across all spheres of experience, contributing to pre-judgments linked to gender, age, race, class, religion, sexuality, or physical appearance, to name but a few. The ultimate goal is to cultivate a greater awareness of the ways in which our experiences have shaped our unconscious mind, so that we may become better at engaging System 2 thinking and move closer to the ideal of the arbitrator as the blank slate.

[1] Kahneman, Daniel. Thinking, Fast and Slow. New York: Farrar, Straus and Giroux, 2011.