By Dr. Ken Broda Bahm –
Judges, arbitrators, mediators: legally trained and neutral minds, without the juror’s baggage of selective perception, predisposition, and bias, right? Not really. In the previous two posts on motivated thinking and instrumental argument, I wrote that an audience’s reasoning and advocacy is driven by emotions and not just by logic. While a jury’s decision making and deliberations might be the acts most obviously implicated in these findings, the mental processes are by no means unique to juries. The experience of going to law school and occupying a specific legal role does tend to refine legal understanding and decision making quality, but that doesn’t provide a blanket exemption to human psychology and communications.
Indeed, the experienced legal practitioner is more likely than the novice to rely on heuristics, those rules and routines that tend to simplify and systematize decision-making. In some ways, that is what “expertise” means: an expanded reliance on heuristics. Rather than making non-jury decision makers neutral and above the influence of human factors, these very heuristics serve to ingrain a decision maker’s habits and preferences. This post takes a look at some of the research on bias in non-jury legal audiences and shares some advice on addressing those factors.
The old saying that “where you sit determines where you stand” — or your role determines your attitude — is certainly true in the legal field. One recent experiment (Glockner & Engel, 2010) showed that even when highly motivated to provide unbiased assessment, the act of assuming a legal role systematically introduces bias into judgments. More specifically, research has looked into ways all three of the main non-jury audiences are biased.
Judges are Biased. Previously, we’ve shown judge’s can be reliably influenced by something as simple as lunch and break times, and that as the breaks become more distant and the judge’s decision fatigue sets in, they find it easier to rely on the default judgment (a heuristic), in this case a decision to deny parole. More recent research on courts in Israel (Shayo & Zussman, 2010) found that the ethnicity or group membership of judges has a measurable influence as well: parties who were of the same group as the judge enjoyed an advantage ranging from 17 to 20 percent. Judges also have policy preferences, and while judges are careful to note, especially in Supreme Court nomination hearings, that they are just applying the law and not making the law, those policy preferences can certainly creep into decisions. As one current study notes (Malani, Farnsowrth & Guzior, 2011), when deciding cases that hinge on the meaning of a statue, the patterns that judges follow are difficult to explain without relying on the policy preferences of the judge.
Arbitrators are Biased. A recent study (Colvin, 2011) looked at American Arbitration Association reports in employment arbitration. Beyond confirming that, in employment cases at least, arbitration does indeed result in shorter times to judgment, lower employee win rate (just 21 percent), and lower mean awards (just $36,000), than comparable cases in litigation before a judge or jury, the most interesting result is the so-called “repeat employer” effect. You would think that a greater number of employees focusing on a single employer would tend to raise employee win rates and award amounts (via the bandwagon effect), but in fact the opposite is true. Employers facing a larger number of claims have the silver lining of a lower employee win rate as well as a lower mean arbitration award level. Part of the explanation for that, the author writes, is found in the greater resources and savvy of the more frequently targeted company (experience is a great teacher), but another significant effect stems from repeat experience with an employer and the same arbitrator. When the same arbitrator hears several cases involving the same company, the arbitrator tends to develop more understanding and identification with the company, and that tends to improve its win rate.
Mediators are Biased. Of course, mediators are facilitators rather than decision makers, but bias can still exert an effect in more subtle ways. In a recent review, Professor Carol Izumi (2010) looked at the question of mediator neutrality, citing a number of surveys showing that mediators find it tough to ignore “personal bias and evaluations of the worthiness of particular claims and disputants,” and tend to try to direct the mediation process toward outcomes they find favorable. Further research shows that the effects of gender, race, and ethnicity exert a greater influence in mediation than in other forms of adjudicated disputes, due to the informality of mediation, and the lack of a court’s norms and symbols of fairness and impartiality. As a result, female and minority parties tend to experience less favorable outcomes than others in the mediation process.
While some bias (for example, based on race and gender) is intolerable, other biases are simply part of perception and thought. In the latter category, you could do a “search and replace” on the sections above substituting “human,” for “biased” and be as accurate. It isn’t a criticism to acknowledge the bias inherent in a judgment role, but it is a critical factor to address. When we trust an illusion of neutrality that is when we get the head-shaking decisions that just don’t make sense. To account for bias in your non-jury decision makers, I suggest four steps:
1. Profile your judge, arbitrator or mediator so you can know as much as possible about their preferences, habits, beliefs, and attitudes. It is always surprising to me that attorneys who now Google their jury pool until they know everything, are satisfied relying on anecdotes and courthouse gossip to assess their judges and other decision makers. When good resources like Courtlink exist, and parallel sources for arbitrators and mediators are emerging, then there is no excuse for not getting the fullest possible profile of your target audience.
2. Pick your audience, to the extent that the process allows you to. In the case of judges, of course, you generally can’t simply pick, especially since judges initially assess their own level of bias (McClellan, 2005), a process which flies in the face of what we know about unconscious or implicit bias. In mediation and arbitration settings, selection is easier. In AAA arbitrations, in fact, a process very comparable to voir dire allows you to submit questions to prospective arbitrators (see Administrative Conference rule R-9).
3. Position your case so that it is adapted to known biases and predispositions. When you know that your judge’s pet peeve is wasted time, then of course the biggest advantage of your motion is that it saves time. When you know that your mediator has a strong concern for equity and not just contract language, then lead with the equities of your case.
4. Push back against any known biases that you need to change in order to win. There are biases you can live with and biases you can’t. One mistake in all of this discussion of human perception and motivation is to treat biases as monolithic and immutable. If that were true, then persuasion would be moot, and the entire legal process would be without foundation. Thankfully it isn’t. People shift beliefs all the time. No, someone isn’t going to abandon a life-long belief just because you give them a few reasons to. But with an individual who, like most of us, holds multiple and sometimes inconsistent predispositions, you can make the harmful ones less salient and the helpful ones more salient.
It all comes down to strategy. So when you’re dealing with a non-jury audience, if you have the impulse to just put the facts and law together and stir, leaving out the ingredient of strategy, you’re making a mistake. Respect the subjectivity of every audience, adapting to it where you can, and changing it where you can’t.
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Other Posts in This Series:
- No Blank Slate (Part 2): In Closing, Treat Your Jurors as Instrumental Arguers
- No Blank Slate (Part 1): In Opening, Treat Your Jurors as Motivated Reasoners
Related Posts:
- Bring the Jury Into Your Mediation
- Remember, it’s a Sidebar, Not a Bar Fight: Reason With, Not At, Your Adversary and Judge
- Call Your Arbitrators Into Question
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Colvin, A.J.S. (2011). An Empirical Study of Employment Arbitration: Case Outcomes and Processes Journal of Emperical Legal Studies, 8, 1-23 : 10.1111/j.1740-1461.2010.01200.x
Glockner, A.; Engel, C. (2010). Role Induced Bias in Court: An Experimental Analysis MPI Collective Goods Repring, n. 2010/37
Izumi, C. (2010). New Directions in ADR and Clinical Legal Education: Implicit Bias and the Illusion of Mediator Neutrality Washington University Journal of Law and Policy, 34 Unconscious Bias in Legal Interpretation
McClellan, F. (2011). Judicial Impartiality & Recusal: Reflections on the Vexing Issue of Racial Bias Temple Law Review, 78
Shayo, M. & Zussman, A. (2011). Judicial Ingroup Bias in the Shadow of Terrorism Quarterly Journal of Economics (August 5)
Photo Credit: Flickr Creative Commons, Yardena 2009