Psychological Factors in the Arbitral Process - Chapter 5 - The Art of Advocacy in International Arbitration - 2nd Edition
Dieter Flader is a Professor at the Free University of Berlin and at the University of Warsaw, and lectures in communication analysis, linguistics, sociology and psychoanalysis. He is director of the seminar “How to Solve Intercultural Conflicts and Improve Intercultural Management Skills” in Warsaw (in cooperation with the Polish company K2liders and the German Chamber of Commerce). He is communication consultant for international companies.
Sophie Nappert is an Arbitrator in independent practice, based in London. Before becoming a full-time arbitrator, she was Head of International Arbitration at a global law firm. Sophie is trained and has practiced in both civil law and common law jurisdictions. Sophie is ranked in Global Arbitration Review’s Top 30 List of Female Arbitrators Worldwide and is listed in the International Who’s Who of Commercial Arbitration.
Originally from The Art of Advocacy in International Arbitration - 2nd Edition
This project has its genesis in the creation of a Special Issue on Arbitrator Bias for the online journal Transnational Dispute Management. Our reflection on various forms of bias in arbitral decision-making, conscious or unconscious, positive or negative, led to the realisation that insufficient attention was being given to the psychological factors at play in the arbitral process. In the wider context, the implications of the cognitive element of professional activity are a growing field of practical interest and academic study. More specifically, what triggers which decision-making processes in the mind of international arbitrators? What persuades an international tribunal and why? Thus we stepped into the ‘twilight zone’ of the human dimension of arbitration.
We initiated a pilot study based firstly on qualitative evaluation research, a method designed to improve professional qualifications in various areas. We explain our approach below. We are now seeking to refine this method by applying research findings in modern neuroscience and cognitive psychology concerning the decision-making process generally. Our aim is to find out whether these findings can be applied to arbitration in practice and if so, how they assist arbitrators and counsel engaged in the process. At the time of writing, this is a work in progress, with a view to eliciting further scholarship, as well as a series of practical workshops on how psychological insight assists the international arbitration process on both sides of the ‘bench’. Although this project presents undeniable academic interest, we feel that it is important to emphasise its practical perspective, and to stress that its primary purpose is to provide a set of tools for the use of arbitration practitioners.