(Almost) Everything you Wanted to Know about the Psychology of Arbitrations…But were Afraid to Ask!
If you want to know more about how to succeed in your arbitrations, you have come to the right place! Arbitrations share many characteristics with bench trials and jury trials, particularly the psychology of how the decision makers decide the issues, but their unique format means that you need to understand how to make the most of the applicable psychology during the process.
First things first, why are jury consultants talking about arbitrations?
Good question, but easy to answer: jury psychologists not only study jurors and jury trials, we study decision makers like judges and arbitrators. Frequently. We study them at real arbitrations and at mock arbitrations. We are familiar with the literature in social psychology, and psychology and law. We are devoted to understanding the “how” and “why” people are persuaded and how they make decisions. Choosing to work with a jury consultant on your next arbitration could make all the difference in the outcome. Next question!
So how are arbitrations different than jury trials and how are they the same?
One way that arbitrations are the same as jury trials is that arbitrators, like judges, are human! They are more human than many people believe (and just as human as jurors). We don’t mean that in a pejorative way—it’s just that many people think that because of their legal training (or specific expertise like insurance or international business) that arbitrators (and judges) will approach cases differently than jurors. Not so fast. Research shows that there are several things that various legal decision makers, be they juries, judges or arbitrators, have in common in how they make decisions, like looking at things through their human lenses. Sure, they discuss different things like issues of law or issues of fact, but what is interesting is how they look at those different things – they use the same psychological processes and cognitive short-cuts to make decisions that other decision makers do. In fact, experience and education aside, nothing is more important than the human factor in making a decision. Importantly, arbitrators do not function like a blank slate; they, like all of us, are influenced by many factors that they probably don’t realize actually are influencing them. None of us is fully aware of what goes on in these brains of ours. We think we are open-minded and we are not; we think we are only using the evidence, but we are using our own experience to evaluate that evidence; and we think we are being objective when in fact we are just using well-known psychological short-cuts like hindsight bias or confirmation bias. In terms of the psychology of arbitrations, there are more similarities to jury trials than there are differences.
Well then, how are arbitrations unique?
Arbitrations are structured differently than trials and bench trials: there are claimants and respondents, there are written submissions as well as hearings, often the only live testimony is cross examination, and the timing may be spread out over weeks. One of the most important differences is that arbitrations are interactive–arbitrators may interrupt, question, comment, etc., such that the process requires spontaneity and the ability to think on your feet. The structure of arbitrations is unique, as is the psychology of preparing for one, but the psychology of arbitrations and arbitrators, not so much.
Arbitrations have hundreds of decision points from before an arbitration to throughout the arbitration process: the selection process, the evidence that will be produced, the arguments to help in the submissions, settling or not settling, how to approach the hearing and considering witnesses, all of which involve serious implications. It is important to note that some of these differences, like the emphasis on written materials, starting testimony with cross-examinations, and the fact that visuals are very helpful aids to complex written materials and hearings are all important in understanding the overall process. These decisions are all influenced by psychology; in this article we will talk about written submissions, approaching the hearing, working with witnesses and about strengthening the presentation through visuals.
Ok, specifically, how does psychology impact the written materials?
The fact that arbitrators typically will receive written submissions from each party prior to the hearing means that the written materials take on a critical role in the way that the arbitrator is persuaded. Let’s start with confirmation bias, which we can see play out every day —beliefs and attitudes work as a set of filters for new information, and information that is consistent with our beliefs is more likely to be believed and remembered while information that is inconsistent with our beliefs is more likely to be rejected as wrong. Pre-hearing submissions are intended to educate arbitrators about the legal issues and evidence but also become the starting point for another set of filters: the essence of the story of the case. In one recent study (Sussman, 2015), not only did most of the arbitrators (88%) report developing a preliminary view of which party should prevail just on the pre-hearing submissions, but an amazing 92% who developed a preliminary view were more likely to retain their opinion after the hearing than not. While it is still true that live presentations can be more persuasive than written presentations, the confirmation bias is a hard bias to overcome. Because arbitrators get briefs ahead of time, these materials may form the basis of their interpretation of what they think happened in the case, in other words, the story. Do not underestimate the importance of developing effective and persuasive themes to frame your story or narrative. They will stick with arbitrators while they hear the live testimony. Make it easy for the arbitrator(s) to know why you should win and how they can make that happen.
What about witnesses, aren’t they just as important as submissions?
Witnesses are important. Many of the same essential characteristics that make a good witness in a bench trial or jury trial apply. Credibility is paramount in winning over the decision maker. For experts, credibility is made up of expertise, trustworthiness and attractiveness. Expert witnesses must have the appropriate credentials and/or experience to be persuasive. They should appear trustworthy which means do they seem honest and what they say has to be believable. Trustworthiness also means seeming objective in their approach to the subject matter. Attractiveness is really more than appearance: it has more to do with not doing things that distract from credibility, for example, wearing inappropriate clothing, or clearing the throat or not speaking up. Many of the same criteria for credible witness performance in front of jury also apply in an arbitration. Behaviors like hesitating, being evasive, fidgeting, covering the face with hands or fixing hair, and avoiding eye contact all tend to indicate a lack of confidence and a lack of credibility for fact witnesses and experts alike. The most effective witnesses combine experience and credentials with honesty and a lack of bias or agenda, and they look the part.
But there are interesting considerations that are particular to arbitrations. Because direct witness testimony is usually submitted in writing before the hearing, when the witnesses are finally heard, it is usually via cross-examination. That means that the first thing the arbitrators hear is the cross-examination of the claimant’s first witness; the last thing they hear is the respondent’s last witness. It is hard to leave a positive impression through cross-examination. Let’s face it – a “draw” is often the best any witness can do against a skilled lawyer. In the arbitration format, first and last impressions are often of witnesses’ weaknesses (albeit for both sides).
In addition, witnesses, particularly experts, fall into several “traps” in arbitrations. They are tempted to speak in highly technical language to impress the arbitrators, assuming the arbitrator’s superior intellect (compared to their assumptions about jurors). However, too much jargon can backfire and give the impression that the expert is attempting to avoid answering the questions, and many, if not most, arbitrators are experts in the law not in the specific area of the arbitration. In other words, arbitrators need easily understood explanations, too. Losing objectivity can be an additional trap. Experts would be wise not to be over-confident or fail to acknowledge alternate theories, at least as to their plausibility in certain conditions (even in conditions that do not exist in this case or are limited in this context).
There is another witness trap in arbitrations: getting wedded to a certain sequence of questions and answers. While judges are permitted to interrupt witnesses in jury trials, they usually resist that impulse because they do not want to influence the jury. Arbitrators, on the other hand, often interrupt when they do not understand or like the answer they have heard. Most witnesses, even experienced ones, can be thrown off their game by aggressive questioning, especially when it interrupts their flow. Witnesses must be prepared to answer the arbitrator’s questions even if not in their prepared sequence; they must not be evasive, politely disagree if they do, and back up with they are saying with clear, concise and non-argumentative answers.
What is the best mode of presentation for an arbitration?
Well, more is better! We know that a combination of presentation modes enhances learning. For example, adding a written component to oral presentations has been shown to increase comprehension, particularly for complex material (Chaiken & Eagly, 1983). This is especially important in arbitrations, which can stretch over weeks or months with multiple interruptions. How does great evidence help if it is not memorable and understandable? Using graphics or demonstratives to help illustrate a verbal presentation has been shown to improve both comprehension and recall, as well as regard for the presenter (Morrison &Vogel, 1998). Write, speak and show your evidence. Take advantage of multi-media presentations to show timelines, tutorials, and to explain your “take-aways.” Because of the predominantly written nature of the materials used in the arbitration, the live presentations have to be much more visual and even interactive (such as a 2-D timeline with documents that you highlight and they appear full size) for impact. But don’t save your visuals for the hearing. As discussed above, the briefs set the stage for the rest of the proceeding. Use visuals to simplify complicated briefs and expert reports, so that those filters created by the briefs work for you and not against you. Strategic graphics are an important consideration as you present to an arbitrator.
How can a consultant help?
Consultants are not only knowledgeable about the psychology of arbitrations, but also skilled at assisting you in selecting arbitrators, developing themes, and preparing witnesses for an arbitration. Our graphics consultants are expert at constructing graphics and animations that support the themes (and the witnesses) in the case. We know from our study of psychology that testing any strategy (be it for a commercial, a new product or a trial or arbitration) before the “launch” can be the difference between a successful outcome and a poor one. Importantly, unconscious biases arise when the arbitrators know who is asking for the feedback and who is paying them. Consultants are skilled at structuring “blind studies” in which mock arbitrators give their opinions about the case before knowing who is presenting or hiring them for the session. A mock arbitration that will allow you to test the key arguments and evidence in the case, allow you to develop the most powerful storyline and educational strategy, and give you and your witnesses some practice. The worst time to find out that your strategy and presentation of the evidence were wrong is after the hearing is over and the arbitrators have made their decision. We are ready to work with you to make sure you have the best outcome possible.
Chaiken, S. & Eagly, A. (1983). Communication modality as a determinant of persuasion: The role of communicator salience. Journal of Personality and Social Psychology, 45(2), 241-256.
Helm, R.K., Wistrich, A.J., & Rachlinski, J.J. (2016). Are arbitrators human? Journal of Empirical Legal Studies, 13(4), 666-692.
Morrison, J. & Vogel, D. (1998). The impacts of presentation visuals on persuasion. Information & Management, 33(3), 125-135.
Sussman, E. (2015). The arbitrator survey – Practices, preferences and changes on the horizon. The American Review of International Arbitration, 26(4), 517-538.