History

I first became practically aware of arbitration more than twenty years when I was a litigator, and my client in a contractual dispute was required to arbitrate. Naïvely, I didn’t give the new forum too much thought; I read the rules and proceeded to litigate as usual. Simple. 

This remains the case for many advocates—and even many arbitrators—participating in the arbitral process today. There are no courses educating advocates about how to select an impartial arbitrator to hear their case. And, though there are courses on arbitration, virtually none of them focus on how to be impartial. Yet, what single quality could be more important in arbitrator?

The increasing reliance on arbitration over the past two decades has coincided with an explosion of academic and popular literature on the science of human decision-making. By and large, the findings have been variations on a consistent theme: human judgment is rife with predictable cognitive errors. This is an issue that has troubled and fascinated me ever since I was an undergraduate psychology student delving into the work of Elizabeth Loftus on the unreliability of eye-witness testimony. Over and over, social scientists and neuroscientists have demonstrated the human proclivity to make biased and incorrect snap-judgments. This represents a substantial obstacle to the arbitrator, whose entire duty consists of providing impartial judgments free from such biases and errors. Yet, across our industry, there is little engagement with the scientific literature on decision-making. ProActive Arbitration is meant to fill this void by focusing on the singular purpose of intentionally cultivating impartiality in arbitration. 

I have sought edification from arbitrators with untarnished integrity who have come before me, from scientists and researchers studying bias and cognitive errors, and from thinkers working to enhance impartiality in other fields and industries. ProActive Arbitration was born out of my conviction that impartiality is the most fundamental duty of the arbitrator, and that it is a quality that can be cultivated with regular, directed effort. I have spent the last seven years seeking answers to the complex question of how best to enhance the impartiality of the arbitral process while keeping it free from litigious excesses. ProActive Arbitration is not a one-size fits all program, but a radical approach that helps arbitrators develop individualized practices for cultivating awareness and presence of mind in order to mitigate bias and enhancing impartiality. My goal is to shift the way we understand impartiality in in the arbitral process, to facilitate honest dialogue among arbitrators and advocates about the challenges we face, and to develop exercises and procedures explicitly designed to enhance impartiality.