Personal Patterns of Pre-Judgment

1. Overview

Previous articles have outlined how to cultivate a frame of mind conductive to nonjudgmental listening, and how to construct an arbitral process that reduces opportunities for bias to creep in. Beyond such universal strategies, what can an individual arbitrator do to address her own personal patterns of pre-judgment—the mental models and cognitive heuristics (i.e. “short-cuts”) she has absorbed from her own personal experiences, as every human has?

 2. Mental Models

 Every day, we are faced with countless small decisions—what to eat, what to wear, how to get from point A to point B. Much of the time, our brains make these decisions quickly and automatically, by relying on our past experiences. It would be impossible to function otherwise, if every familiar situation were treated as a completely new problem to be puzzled over.

Our brain accomplishes such snap judgments by packaging our past experiences into mental models about the world. Mental models help us sort unfamiliar experiences and people into familiar types. Once a novel situation has been subconsciously sorted into a type, the mental model provides us with a cognitive heuristic, or short-cut, for deciding what to do. A snap judgment has occurred. In this way, our minds create order out of chaos. It is an impressive and necessary feature of our consciousness. 

The obvious downside of these mental models is that they can prevent us from treating each situation or person as a new one to be observed and analyzed as though it is unique. It is sorted and seen through the prism of our past experiences. Our own past experiences represent an infinitesimally small portion of collective human experience, and thus our mental models, however helpful to our daily life, do not always constitute an appropriate tool for an arbitrator tasked with making impartial judgments about a unique case. The job of the ProActive arbitrator is to identify the perjudicial cognitive heuristics he has absorbed from past experiences and train himself to keep these mental short-cuts in abeyance.        

3. An example

 Consider the case of an arbitrator who was employed previously as an in-house counsel for an architecture firm, and subsequently serves as an arbitrator in construction cases. This arbitrator enjoys many benefits from his past experiences: a wider knowledge of industry-specific practices and norms, a deeper technical understanding of building processes, and personal familiarity with disputes similar to the particular construction case at hand. Such knowledge can help the arbitrator grasp certain aspects of the dispute more quickly and precisely than an arbitrator with less professional experience in the industry. However, this arbitrator also brings with him many more mental models about construction cases, and these mental models will likely include impulses, assumptions, or theories about how the case at hand is “like” other cases he has seen in his previous career. Cultivating a “blank slate” mindset will certainly help to mitigate such assumptions. Additionally, the arbitrator can improve his impartiality by attempting to identify some of his most prevalent mental short-cuts, and the occasions when he uses them. Then, he will be more aware of the role of those mental models in his thinking, and better equipped to mitigate them should they occur during the arbitral process.

 4. Identifying Cognitive Heuristics: Cringe-Worthy

 Most people have probably already given some thought to their biases, however informally, through introspection about what they like, what they dislike, and why. The ProActive Arbitrator should formalize this process by regularly scheduling time to reflect on the quick pre-judgments they make throughout the day, and the cognitive heuristics and associations that give rise to those judgments. Get a journal or notebook that you will use for recording what you notice about your own habits of mind.

 A useful exercise for beginning this study of your mind is to brainstorm everything that makes you cringe—everything that elicits a visceral recoil or attitude of disdain. You can start with situations or behaviors that irritated you in past arbitrations, but do not limit yourself to the arbitral process. Look to moments of frustration, impatience, or distaste in your daily life. Take at least ten minutes to write down everything that comes to mind.           

This initial list is just your starting point, and you can continue to add to it whenever you notice yourself “cringing” in your daily life. Once you have a list, you can start to ask yourself why these things make you cringe, what assumptions or short-cuts are activated when you find yourself recoiling from these things. You can practice interrupting such short cuts and returning your mind to the blank slate. The goal is not to free one’s mind of all judgments all the time—judgments and opinions are part of being a human being. The goal is to have a greater understanding of the mental models and cognitive heuristics that form the landscape of your consciousness, and how those models can give rise to bias, so that you will become more skilled at remaining neutral and mitigating bias during the arbitral process. 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.[1]

5. A Personal Example

Near the top of my first cringe-worthy list was the phrase “excessive tattoos.” I noticed myself feeling wary, judgmental, or simply disinclined to engage with people who had many tattoos on their arms, neck, or face. I asked myself why this was, and observed my own thoughts when I encountered such a person. It soon became clear that I had established a mental heuristic linking heavily tattooed individuals to gangs, criminality, aggression, and untrustworthiness. This is not an uncommon mental model for people of my generation, especially those born in a socially conservative suburb of Oklahoma (the last US State to legalize tattoo parlors!). But the origins and the ubiquity of the mental model do not make it any less detrimental to impartiality in the arbitral process. Recognizing that this mental model has been operational in my consciousness, I am better equipped, when I encounter a heavily tattooed individual, to notice my System-1 pre-judgment at work and to replace it with System-2 thinking, reminding myself that I can draw no conclusions about an individual’s character on the basis of their appearance or tattoos. On more than one occasion, I have presided over an arbitration in which testimony was delivered by people with visible tattoos.

 6. Everyone Is

Once cognitive heuristics have been identified, there are some additional exercises than can help in mitigating their effects. The exercise “Everyone Is” works to weaken ingrained cognitive heuristics by breaking down the link between the cringe-worthy phenomenon and the judgment. When it is possible, you assume that everyone you encounter in a given period possesses the trait or habit that makes you cringe. In the example above, I would assume that every person I encounter throughout the day is heavily tattooed beneath their clothes. Obviously, the exercise cannot be applied to every cognitive heuristic, but it is a useful tool where it is applicable.

 7. Priming

Another promising method of intervention, known as priming, involves deliberately exposing oneself to images or examples that run counter to specific cognitive heuristics. Once you have identified a bias or a mental association that would impede impartiality, you can design specific visual, auditory, or experiential stimuli that fit into your daily life. You begin to alter the old mental model by regularly encountering examples that disprove it.

Let us consider one of the most widely studied and documented biases in contemporary American society—the cognitive association between black men and criminality. There have been literally thousands of studies conducted by social scientists and neuroscientists documenting the prevalence of this mental association and its manifestations in policing, sentencing, housing, employment, education, tourism, and many other domains of social life.[1] An arbitrator who identifies in himself feelings of suspicion or fear when he encounters black men has identified a manifestation of a pervasive, society-wide anti-black bias, which he has absorbed consciously or unconsciously into his own mental model.

Priming exercises designed to counter such a bias would involve increasing one’s daily exposure to examples of black men who are not criminals, whether in the form of images, videos, audio, or seeking out opportunities to leave the racially homogenous bubble of one’s daily life, if the arbitrator resides in such a bubble. What authors or journalists you read? What TV shows or radio programs do you consume? Social media platforms present a novel opportunity: create a twitter account, or any social media service that allows you to follow/subscribe other users, and follow black individuals whose writing or content you admire. Every time you login to the account, you will be absorbing the diverse perspectives and voices of black individuals, working against a bias that functions on the level of a generality.

Our goal as arbitrators should be to weaken any mental associations we carry between groups of people and innate characteristics, whether those groups are based upon race, ethnicity, gender, region, religion, sexual orientation, or any other characteristic. Many scientific studies have shown that communal and societal stereotypes can influence our thinking, even when we consciously reject those stereotypes as inaccurate, or grounded in longstanding collective prejudices. Thus, every ProActive arbitrator, regardless of the individual patterns of judgment he identifies in himself, should strive to cultivate a daily life full of a broad range of people and perspectives.

Project Implicit is a nonprofit organization focused on implicit social cognition—thoughts and feelings outside of conscious awareness. The goal of the organization is to educate the public about hidden biases. Project Implicit’s website features short, investigative computer-based assessments that provide immediate feedback to the test-taker about one’s possible cognitive associations with various identity groups. It is a simple way to initiate an introspective view. Should the test reveal tendencies inconsistent with neutrality, the test taker has a place to begin an investigation of the mental models operating in their daily life.

 8. Conclusion

At root, impartiality is about remaining curious and alert to your own thoughts and reactions. By cultivating this awareness of your own mental habits, you will gain more facility in overriding some the shortcuts and snap judgments that make up your mental models. When paired with exercises for listening as a blank slate, and with procedural practices designed to remove opportunities for bias to creep in, we can begin to set a new standard for what ‘impartiality” means in the context of arbitration, and increase confidence in the fairness and efficacy of the arbitral process.

[1] For a comprehensive and highly readable introduction to this topic, I recommend Jennifer L Eberhardt’s Biased: Uncovering the Hidden Prejudice That Shapes What We See, Think, and Do. Penguin Books, New York, 2019. Further discussion of scientific research into Implicit Bias and Priming Exercises can be found in the following article “Scientific Support for Impartiality Practices.”