Originally from Alternatives to the High Cost of Litigation

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As our Master Mediator columnist, Robert A. Creo, takes a break from his extensive, multi-year coverage of the neuroscience of mediation and goes “back to basics” (see page 156), we have asked New York-based arbitrator and mediator, Edna Sussman, to summarize for Alternatives her in-depth research on the brain science of adjudication, particularly in the context of arbitrator decision making.

Nearly twenty-five years ago, Robert Coulson, then president of the American Arbitration Association, suggested in an article that the prevailing emphasis on studying applicable law and procedural rules in arbitration might better be replaced with an analysis of “how and why arbitrators make up their minds.” Mr. Coulson’s comments presaged today’s vigorous discussion of the subject of decision making and the explosion in psychological learning on the subject, with attention finally turning to its applicability to judges and arbitrators.

INTRODUCTION TO “BLINDERS”

The literature that studies the psychological phenomena that may affect the adjudicative decision-making process refers to them as “biases.” Because the word “bias” has negative connotations in arbitration, relating in particular to the independence and impartiality of arbitrators, this article borrows its nomenclature from Professor Chris Guthrie, and refers instead to “blinders.” The biases/blinders discussed here are simply human nature. Decisions are ultimately made by judges and arbitrators who are human beings. Their minds function anatomically in the same way as the minds of others. Legal training cannot and does not alter this fundamental reality