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Fairness in decision-making is one of the most important tenets of delivering justice. However, subconscious bias is inevitable in arbitration and it is the responsibility of a neutral to remain impartial throughout the arbitration process. 

Arbitrators must serve with professionalism in every step of dispute resolution by acting impartially, fairly, honestly, and diligently. To do that, here’s a short discussion on how subconscious biases can be dealt with in arbitration.

Following the insights of Richard G. Waterman’s Thinking Open-Mindedly to Promote Good Decision-Making and Charles Ehrlich’s Ungoverned Brain: A Wild Card in Decision Making, we try to understand and pinpoint aspects in the process that neutrals should be aware of in decision making.

Raising awareness on subconscious biases & taking action

When presented with evidence, Waterman argues that an arbitrator may already have expectations, preconceptions, and prior beliefs on the matter at hand, but they have to be on the lookout for the possibility of a confirmation bias — in which they could interpret a piece of new evidence to affirm their preconceptions or gravitating towards evidence who resemble oneself. 

Since they are not subjected to constraints of judicial ethics, arbitrators must also rid themselves of extraneous pressure, criticisms, and of second-guessing. 

They should take into consideration how the dispute was presented by the involved parties and assess how their presentation could subconsciously affect how they interpret the situation. Taking a mental note of possible roots of biases could help rid of obsolete opinions and of inaccuracies of knowledge in memory. After all, one cannot deal with something one is not aware of.

Even at the early stages of arbitration, the neutral could start testing their hypotheses — analyzing facts that disagree with the initial hypothesis and taking pieces of information that corroborate the hypothesis and treating them as evidence. 

Ehrlich also says that keeping a checklist of factors that could skew decision-making helps an arbitrator become more conscious of the steps to be taken throughout the arbitration procedure. Taking actions on recognizing them and addressing the issue of subconscious bias would ensure fairness in arbitration. 

Applying actions to achieve a fair resolution

Arbitrators must recognize that one cannot expect a level of perfection when handling conflict resolution. There will always be roadblocks along the way, which is why Waterman reminds that neutrals should keep in mind that their role is to present a solution that is fair to all parties — as a winner-take-all situation may not always be reachable. 

Keeping an open mind is also integral by considering alternate possibilities in arriving at a resolution. Arbitrators should actively search for relevant information and not prematurely cut off the search for alternatives. 

Once they arrive at a tentative conclusion to the dispute at hand, Ehrlich suggests that they should consider writing down their reasoning on how they got there, and they could also look into discussing their methods to co-panelists as they attend to the case — rather than withholding comments until the very end of the arbitration process. 

Deliberations allow parties to listen to each other’s side, which the arbitrator can maximize to acknowledge in good faith the strong arguments presented by the parties, however, the neutral must properly facilitate the process, ensuring a high degree of respect in listening to opposing views

At the end of the day, an arbitrator’s main goal is to evaluate the evidence provided to them and provide involved parties with a solution that is fair and reasonable. With this, they have to avoid instances of subconscious biases by being able to recognize them, to understand the role it will play in their decision-making abilities, and provide proper reasoning in arriving at a resolution using evidence and by avoiding confirmation bias. 

To wrap it up, subconscious biases in arbitral decision making can be dealt with by:

  • Being aware of one’s biases
  • Keeping a checklist of factors that may affect decision making
  • Accepting that perfection cannot be achieved, but fairness is possible
  • Open-mindedness
  • Write down the reasoning of a tentative decision
  • Ensure respect amongst parties involved

Jur recognizes that there are no perfect arbitrators, but we are on the quest on providing all parties with the one that would suit their needs and guide them towards a hassle-free way in arriving at a solution that is fair to all. 

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