Originally from World Arbitration and Mediation Review

ABSTRACT

Evidence can be viewed as a representation of varying degrees of memory. For example, witness statements depend on the memory of the witness. Drawings, photographs, and videos are a representation of a story told by an interested party. New high-tech methods such as 3-D animation and augmented and virtual reality allow users to manipulate and create new worlds, again, based on the recollection of the parties or the witnesses to the dispute, while more intrusive methods such as functional magnetic resonance imaging (“fMRI”) allow arbitrators to watch, in real time, how the parties’ brains and memory structures react to certain stimuli. Based on research from cognitive psychology and neuroscience, the authors reflect on the connection between memory and different types of evidence technologies used to represent the “truth” in an arbitration process.  Finally, they reflect on whether the arbitration system is ready for a more memory-inquisitive evidence system, such as functional magnetic resonance imaging (“fMRI”) which could be allowed in the near future.