Asked by his client to assess an AAA or ICDR arbitrator, a lawyer is likely to respond, “she’s fair, careful and thoughtful—doesn’t have biases.”
Asked the same question, the arbitrator’s answer will almost certainly be the same. She will explain that she makes decisions, “through careful deliberation, applying my experience and concepts of fairness to the evidence presented, pertinent law, industry custom and practice, and the arguments of counsel – and certainly without bias.”
Sounds great. Makes sense. But perhaps not totally accurate.
In reality, our brains take capricious detours. Arbitrators, counsel, and parties need to understand those detours and their potential effects on decision-making. This article identifies some of those detours, and suggests ways to keep them from leading us astray. We’ll discuss the effects of inadmissible evidence, character of the parties, confirmation bias, hindsight, anchoring, framing, and, most captivating, self-serving bias. We’ll follow with a brief diversion into food’s influence on decision-making. Lastly, we’ll look at some ways to avoid these unconscious detours that affect reasoning.
Inadmissible evidence is the classic challenge to a decision-maker; how to un-ring the bell? In fact, it’s very difficult -- as demonstrated by several experiments with judges.