The Indecisive Arbitrator (And His Cognitive Biases)

The Indecisive ArbitratorMy father has a running joke about being indecisive.  “Do you have trouble making up your mind?” The answer:  “Well, yes and no.” Indecisiveness is actually a good quality in an arbitrator.  It is another way of saying, “keeping an open mind until the end.”

When I was a teenager, I spent a few days one summer hanging around a courthouse, sitting through a murder trial.  The DA questioned a witness, and I thought, “That makes sense.” The defense attorney then cross-examined the witness, and I thought, “Wow, that makes sense too.” After the prosecution rested, the same pattern occurred with the defense.  By the closing arguments I had reacted against both lawyers and witnesses with a sense of deep suspicion. I assumed they were all lying or at best stretching the truth.  Yet if I were the decision maker, how would I have made a decision?

It could not be based on sincerity.  When I was learning to be a mediator, one of my mentors told me, “The parties have repeated their story to themselves so often they really believe it. They may be lying even to themselves.  Sincerity doesn’t mean much.”

It could not even be based on the “truth” about what happened.  In college I took a difficult historiography class. We looked at one particular historical incident each week by reading five books describing it from five different perspectives. It was like Rashomon with footnotes. The historian’s perspective: there is no truth, only a series of facts that we piece together into a story based on our biases.

Judges and arbitrators talk a lot about cognitive biases.  Some of the major biases are fundamental attribution error, or the tendency to assume that someone else’s problem represents a failure of character tainting everything else a person does, but one’s own success is the result of personal effort; anchoring bias, or the tendency to “anchor” a decision on one piece of information; backfire effect, where one reacts to information that is inconsistent with a developing hypothesis by strengthening belief rather than questioning it; belief bias, where one accepts the conclusions of logic based on a non-rational belief as to the plausibility of the outcome (one objection to Bayesian statistics!); confirmation bias, or the tendency to accept only information that confirms one’s existing beliefs; hindsight bias, or “I knew it” (or from the arbitrator’s perspective, “You should have known it”); and my favorite, bias blind spot, or the dangerous belief that one is less biased than others.

One bias that all arbitrators must keep in mind for every case is called the framing effect, or the tendency to draw different conclusions from the same information depending on who presents it and how it is presented.  We must constantly evaluate the credibility of the source.  If a source we do not trust tells us information that sounds truthful, or if a source we do trust tells us information that sounds untruthful, we should be careful how we weigh it.

Have you ever seen a pachinko machine, the Japanese version of pinball?  That is what an arbitrator’s decision making process is like.  Facts and arguments come in, bounce off biases and piles of other balls and come out at the bottom, when we tally the score.  The skillful advocate will be able to play to the arbitrator’s biases or help him try to get the pachinko balls past them.  The skillful arbitrator will remain indecisive and let the balls fall where gravity leads them.