Arbitrator Decision Making: Unconscious Psychological Influences and What You Can Do About Them

Abstract

Scholars have explored the impact of the unconscious on legal decision-making. Research has shown that, as with all human beings, intuitive reactions play a significant role in judges’ decision-making. While there is a lack of agreement as to whether there has been sufficient study of the subject to draw conclusions as to the extent to which a judge’s deliberative faculties are invoked to override the intuitive reaction, there is no question that intuition is operative and impacts a judge’s decision-making as it does for everyone. Given the similarity of the tasks, one must conclude that arbitrators’ decision-making is similarly impacted. This article examines the unconscious intuitive processes in the arbitration process and offers suggestions to foster a more robust deliberative overlay and improve the quality of decisions by arbitrators. It also provides suggestions for counsel’s consideration to aid them in capitalizing on these unconscious influences. In order to provide a context that reflects actual arbitrator decision making, the results of a survey of arbitrators is reported where they illustrate and amplify the psychological influence discussed.

Keywords: arbitration, arbitrators, psychology, bias, decision-making, system 1, system 2, arbitrator interviews, confirmation bias, anchoring, framing, mock arbitrations

JEL Classification: K12, K19, K39, K40, K41, K49