Impartial Procedural Practices
1. Overview
As you continue to develop your baseline awareness and become more accustomed to the blank slate, you will almost certainly notice particular pre-judgments or reactions that arise repeatedly in your mind. This means you are becoming more acquainted with the workings of your own mind—the patterns and the idiosyncrasies of your own consciousness.
Just the simple act of noticing these pre-judgment has been shown to diminish their influence on decision-making. Beyond noticing, there are additional strategies for mitigating them even further. One of the most effective strategies is to put procedural practices in place that limit the disclosure of unnecessary information which may give rise to bias.
2. In-Group Bias
We all belong to countless groups or communities—families, neighborhoods, nations, races, religions, alma maters, professional associations, etc. In-group bias occurs when an individual’s allegiance to a group is activated and she shows favor or preferential treatment—consciously or unconsciously—to another member of that group. In the context of an arbitration, this might look like giving more credence to an expert witness who graduated from your alma mater, or harboring more skepticism about the capabilities of an advocate who belongs to an organization you dislike. Studies have shown that, even when people disavow any in-group bias for a particular group, their allegiance to that group may still be operational subconsciously.
For this reason, it is imperative for arbitrators to minimize the flow of information that might trigger an in-group bias, when such information is irrelevant to the arbitral process.
3.Avoid Disclosure of Unnecessary Information
What constitutes unnecessary information? Some people will object that an expert witness’s alma mater is relevant information, because it speaks to the quality of their training, research, or critical thinking.
When many of us made decisions about where to get an education, we took into account factors such as a university’s reputation, its alumni network, the connections it would help us make, the doors it would open. This was a practical calculus, based on the intuition, “That’s just the way the world works.” And indeed, this is often is the way the world works—certain institutions have reputations that provide us with status and opportunities. But is it the way we want the world to work in the context of an arbitration striving for impartiality?
It may feel jarring to adopt a practice that works against such ingrained intuitions about “better schools” producing “better thinkers.” But when we realize how easily we can make assumptions based upon a group-identity like alma mater, and how easily those assumptions can be completely wrong when to comes to the individual sitting before us, it is nothing less than common sense to eliminate the possibility for such an association to arise. Graduates of brand-name schools may have been admitted as a result of financial donations or legacy status. A quick perusal of the alma maters of the perpetrators of this century’s most serious financial crimes will demonstrate that any brand-name degree does not have any relationship to a witness’s honesty or trustworthiness.
The type of training a witness has received is relevant, but the organization where they received that training is not. Before the process commences, send an email requesting all advocates refrain from disclosing the following information about all witnesses or advocates:
Alma maters
Affiliations with religious organizations or social clubs
Political affiliations
Hometown
Hobbies or leisure activities
Marital or parental status
Clearly, these strategies cannot address or account for all in-group biases, as some biases are activated based upon physical appearance alone (gender, skin color, age, beauty, height, etc.) These biases can only be addressed through cultivating awareness of them and seeking to mitigate them through the use of strategies such as priming. But the fact that practical procedures cannot address every manifestation of bias does not negate their efficacy in addressing many biases and improving the impartiality of the arbitral process overall. Remember, enhancing impartiality is not about attaining perfection, but about making real progress toward an ideal—the ideal upon which the entire notion of justice is based.
4.Avoid Unnecessary Interactions with Advocates and Witnesses
When I am an arbitrator on a case out of town, I ensure I am not staying at the same hotel as the advocates so as to avoid any unnecessary conversations or interactions. Even a small moment of intimacy, such as a friendly exchange in an elevator or hallway, creates the opportunity for sympathies or antipathies to grow. Many of us would like to believe that we are capable of disregarding or overriding the influence of such casual and seemingly minor interactions. But why would an arbitrator whose sole job is to serve as an impartial decision-maker want open themselves up to the risk of being swayed subconsciously by irrelevant interactions, when it is so easy to avoid them altogether by simply staying at a different hotel?
Similarly, I avoid all small-talk and side-conversations with advocates during the arbitration. In a culture like ours that values cordiality and sociability among colleagues, it can initially feel rude or inappropriate to insist on a total prohibition of small-talk with advocates. But impartiality is the arbitrator’s job, and an advocate will appreciate this commitment to duty. As an active investment in impartiality becomes more widespread among arbitrator’s, sociability between arbitrators and advocates will come to seem not only unnecessary, but unethical and counter to the arbitrator’s mandate to uphold impartiality.
5. Assemble a Diverse Panel
In cases when a panel of arbitrators is employed, diverse perspectives, respectful disagreement, and the freedom to voice conflicting interpretations of the facts all serve to enhance the panel’s impartiality. A team of alpine mountaineers can serve as an illuminating analogy. Alpine mountaineers have long been taught to tether themselves to one another with a rope, so that if one person falls, the others can stop his fall by driving their ice axes into the ground. What often happens instead, is that the falling person drags his team members off the mountain, all of them falling to their deaths together. Today, many mountaineers question the wisdom of this traditional safety method and advocate forgoing the tethers.
In arbitration, a neutral often believes he will be able to spot bias if it occurs in his own thinking, or in the thinking of the other neutrals on his panel. He will notice the pre-judgment and reflecting on its effect on decision-making. But if all the neutrals on a panel are tethered to one another by substantial shared experience (professional and/or personal), they are much less likely to notice a bias and question its impact than a panel composed of arbitrators with different backgrounds.
Panels that contain arbitrators with varied professional backgrounds are likely better equipped than homogeneous panels to catch pre-judgments that arise from career-based in-group biases. Panels that reflect a diversity of ethnicities and genders are likely better equipped than a homogenous panel of three European-American men (who currently make up the majority of arbitrators) to identify pre-judgments based upon ethnicity or gender.
6. Appointing a Chair
The most experienced arbitrator is often appointed the chair of the panel. To many, this is common sense: why wouldn’t you want the most experienced sailor steering the ship? The downside of such a practice is that it reinforces a hierarchy in which the most experienced arbitrator is seen as the “boss,” diminishing the likelihood that the less-experienced arbitrators will voice perspectives that conflict with the boss’ judgment or interpretation of the facts. And in such cases, this can increase the likelihood that the chair or the “expert” will drag the panel to an award that is based upon a misunderstanding or mistaken assumption.
An arbitrator’s reputation among her fellow arbitrators is important for securing future appointments. Her work, and perhaps her income, are linked to the frequency with which her colleagues recommend her to serve on panels. Thus, agreement with or deference to more-experienced arbitrators is incentivized, or is at least hovering over the panel.
To combat this dynamic, arbitrators and advocates can consider appointing a less-experienced arbitrator the chair (assuming she has experience serving on a panel). The result is that the less-experienced arbitrator is more empowered to speak her mind. The more-experienced arbitrator still feels free to share her perspective and judgment, but is cast in a role closer to that of a mentor than of a boss.
When selecting arbitrators with ample experience, an advocate should seek those who strive to fill this role of “mentor” with an open mind, remaining aware that the student is often simultaneously the teacher. A novice, though lacking much of the knowledge gained from experience, can also be free from the ingrained habits or assumptions that limit the thinking of the experienced.
A child often sees a simple solution where an adult cannot, for the simple reason than the child is unencumbered by the limitations of the adult’s mental model. It is the same reason youth is often associated with a bold willingness to break with convention, while old-age is associated with deference to traditional methods. A new/young arbitrator may be able to see and (with the proper confidence) ask questions the more-experienced neutrals may not allow themselves to ask, because they cannot imagine the question needs to be asked. They have already decided how it should/must be in the mind of the witness. Better to ask and confirm than to assume in error.
7. State Shared Goals in Writing Before the Process Begins
Even if a panel consists of arbitrators with diverse experiences and the lesser-experienced arbitrator is appointed chair, impartiality will not be much improved if arbitrators are disinclined to admit that their thinking can be influenced by bias or cognitive error. The whole point of having arbitrators with diverse backgrounds and professional experiences is that they will be more likely to possess different perspectives and assumptions, which become more apparent to themselves (and to each other) when seen in relief against one another. For an arbitrator with an impartiality practice, it is easier to “catch” one’s own pre-judgments when the pre-judgments stand out, rather than being mirrored in fellow arbitrators. Thus, it is essential to remain open-minded to other panelists’ perspectives, or the possibility that one’s own perspective may be influenced by pre-judgments.
Arbitrators should seek out co-panelists who value self-reflection and humility. Arbitrators who chair a panel should actively encourage respectful disagreement and dialogue throughout the process. The goal is to create a culture in which every arbitrator on the panel is encouraged to raise questions about assumptions, pre-judgments, cognitive errors, and biases, so that they may work together to reach the most impartial decision. It is helpful to articulate such a shared goal in writing before the arbitral process begins. This may be as simple as a stated goal or intention that the arbitrators on the panel draft together.
8. Conclusion
A heterogeneous panel of ProActive arbitrators has many tools at their disposal to mitigate pre-judgments and biases in the process. They can limit disclosure of unnecessary information throughout the process. They can eliminate unnecessary interactions with Parties. They can appoint a lesser-experienced chair to dis-incentivize deference to the senior arbitrator. And they can draft clear shared goals to value honest and direct dialogue among themselves regarding assumptions and prejudgments, rather than prioritizing superficial concord based upon evading disagreement.