The Psychology and Neuroscience Applied to Arbitration – The Next Top Model

Social Psychology studies how people think, feel, and behave (Robbennlot, Jennifer K and Sternlight, Jean R. Psychology for Lawyers, Understanding the Human Factors in Negotiation, Litigation and Decision Making. ABA Publications, 2012. There is a second edition ready), and Neuroscience, as a set of scientific disciplines, deals with how the nervous system and the brain operate, related to the process of perception, information processing, how we make decisions and human behavior occurs. Therefore, shouldn’t we as arbitrators know at least the basic elements and principles of these two disciplines as applicable to the work we do? Because our work is with people, from ourselves, with the parties and their legal representatives and other subjects that intervene in the scenario of an arbitration process. And if also Psychology has concluded that we are “emotional beasts” (Kahneman, Daniel. Think Fast. Think Slowly. Editorial Debate, 2011) and that practically all our decisions are modulated by our emotional brain, then we are not one hundred percent rational and logical, even in making important decisions (as it is, as far as this article interests and refers the resolution of a conflict), we should, not only as arbitrators but as people, be interested in the contributions of psychology and neuroscience.

So the statement I heard in a talk, that to be a good arbitrator, it is enough to know the law,… well, it is very far from those competencies that can make us a better arbitrator, applying what was said by David Sousa, chemist and master in the art of science teaching, from Harvard University, who conducted a study for the ABA (American Bar Association), (Sousa, David. How Brain Science can make you a better Lawyer. American Bar Association Publisher, 2009), on the advantages of applying brain science to law, which “can make you a better lawyer.” Arbitration is one of the alternative means to the traditional formal means of resolving conflicts, which is the judicial process, with its guiding principles, which even come from constitutional roots. And although the arbitral tribunal, be it unipersonal or collegiate, is responsible for resolving the dispute of the parties, as in the judicial process, it operates with flexibility and less formality and rigidity than the former, at least in the way it was conceived. originally. This does not mean that it is not legally and statutorily regulated. But like any process that involves the approach to a conflict between parties, those who are going to act as arbitrators must have a domain beyond the technical legal issue that is the object of the arbitration, such as: knowing the competences of emotional intelligence to handle the emotions of hers and of the parties and their legal representatives (Goleman, Daniel. Emotional Intelligence, Editorial Kairós, Barcelona, ​​1996), which are evidenced in their memorials and in face-to-face or virtual hearings; know how the decision-making process works; know and apply techniques and tools to handle verbal and / or written objections or attacks; learn to respond and not react.

How emotions affect our perceptions and influence our decisions. A good handling of an arbitration process from these axes, facilitates the development of the same in a fluid way and a generation of confidence of the parties towards the court that is in charge of the matter that relates them. To give an example: let’s imagine a virtual or face-to-face test reception audience. The witness of one of the parties is testifying and the lawyer of the other party interrupts him and makes an objection because he understands that he does not answer the question he asks. The lawyer for the proposing party intervenes and says that the lawyer is wrong and wants to direct the witness to the answer he wants. And he fools you on acting in bad faith. The lawyer is offended and reacts by saying that this is not the case and that he could rather file a complaint against him. The president of the court calls the attention of the lawyers and tells them that he understands them, but that they are already people of legal age, lawyers and lawyers do not behave like that, they must calm down. 2 One of the lawyers remains silent, but the other claims the court because it calls his attention if what he is doing is defending the interests of his client, against the abuse of the other party’s lawyer, and so on and on…

The situation it seems that the court has gotten out of hand; a lack of trust from lawyers has been generated and the situation has escalated. Is it the law that tells me how to act appropriately and efficiently in these situations? Is it the regulations that regulate arbitration and the substantive law applicable to the matter, which can give me light on how to manage my own emotions and those of the parties? Is it correct to remind lawyers of their role as such? Should I, as an arbitrator, correct the parties, witnesses and lawyers, calling their attention in a severe way, so that they comply with the indications of order and due behavior during a hearing? And what about cognitive biases and distortions, especially the implicit ones.

Why are there lawyers who, even knowing that their theory of the case is not correct even that it borders on ethics to the point of imposture, entrench themselves in their position, even when evidence to the contrary is opposed? Well, it is not convenient to say to the parties “I understand you, Bachelor, probably in your situation you would have done the same, but there are rules to follow, so the court asks you …” Saying “I understand you” is always followed by a “but” (Chris Voss. With Thal Raz. Never Split the Difference. Negotiating as if your life depended on it. Haber Collins, 2016), so that there is no content to say that a part is understood. Instead, reflect emotionally: “You are upset with Mr. X’s question because he says that….” And give the space for the part to feed back and confirm, if it is the case, what you have said. In studies by Lieberman, Matthew D. and Torre, Jared B (Putting Feelings into Words: Affect Labeling as Implicit Emotion, SAGE Journal, 2018), demonstrated from neuroscience that “affect labeling” has the effect of regulating the emotional response of a person, since labeling is a form of implicit regulation of emotions, as it may not feel like a regulatory process of emotions, when it occurs. This is what Douglas Noll (De-Escalate: How to calm an angry person in 90 seconds or less, Atria Books, 2017), North American mediator, calls the “micro intervention”, since it can last less than a minute. It is also known as “messages you.”

This technique reduces automatic activity (fight / flight / freeze reaction); You activate the control regions of the frontal-foot cortex (behind the forehead, where the executive brain, the CEO, is); decreases the activity of emotional generation of the brain amygdala and reduces emotional behavior. Because reacting with anger is, as Buschman says, like pouring gasoline on a fire (Buschman, Brad. Dies venting anger feed or extinguish the flame? Iowa State University, 2002. For this reason, he advises self-distancing. like the fly on the wall (which are less aggressive), like the “get on the balcony” technique (Ury) or the helicopter technique: see things from a distance, as if they were happening to someone else. But you have to practice Well, in the courtroom you will not have a coach by your side, who will tell you how to do it. It is appropriate to use assertive language, the ideal style of communication. Say what you feel and think, in a respectful way. Meaning is often confused and scope of what is “assertiveness”, with saying things with authority and severe tone, “to be respected as a referee”, you have to be “direct.”

And this is translated into aggressive expression. Aggression is another of the communication styles, so being assertive cannot be behaving aggressive. Is being assertive being direct? Yes, but not direct in the sense that many misunderstand it: saying things in an aggressive, provocative and even combative way. If being assertive is saying what I feel and think, without feeling ashamed, in a direct and precise, but respectful way, to be direct is to use a straight line; not go around the ideas to be able to express them, with fear (the passive). 3 Therefore, learning to acquire the competences of emotional intelligence (self-knowledge, self-management, social knowledge, social management), is important, to the point that it has been concluded that personal attributes such as the ability to recognize and regulate emotions, is more significant for effective performance as a lawyer, than cognitive factors (Shultz and Zedeck, cited by Muir). Georgetown has found that the high performance is associated with the ability to maintain equanimity in the face of pressure and anxiety (Muir, Rhonda. Beyond Smart. Lawyering with Emotional Intelligence. ABA Publications, 2017). You have to learn to control the “mongo” (the internal beast that every lawyer carries inside).

Propose a review of the study plans and curriculum development in law schools and the inclusion of these other disciplines (Robbennlot, Jennifer K and Sternlight, Jean R. Psychology for Lawyers, Understanding the Human Factors in Negotiation, Litigation and Decision Making. ABA Publications, 2012). The referee must know tools for effective communication, both written and verbal. Because it is not only important what is said, but how it is said and what the other understands, from the proper understanding of human factors in litigation, negotiation and decision-making. The fact that a lawyer is appointed arbitrator does not make him an impartial, neutral, objective person. It is still subject to cognitive biases and distortions, which can affect decision-making, such as confirmation bias, which involves admitting and / or seeking only the information that confirms the preconceived decision line. With a lack of referee empathy; that is, the ability to analyze the theory of case and perspective of both parties and not just that of one of them, because it adjusts to their way of thinking. So the “next top model” of refereeing training, should be one that includes the discussed topics on social psychology and neuroscience.


Rosa María Abdelnour Granados

Lawyer, Mediator / Conciliator, Arbitrator. Multiple courses and training in ADR. Specialist in Development of Teaching Skills and Master in Teaching and Educational Innovation. Mexico. Strategic Negotiation Specialist. ENE, Spain. Doctor Cum Laude in Public Law. Spain. Graduated with a Double Master's Degree in Mediation and Project Management. Graduated in…

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