This audience might be interested in reading an article that appeared in the December 2016 volume of the Journal of Empirical Studies entitled “Are Arbitrators Human?”  Authored by a Ph.D. candidate in human development (Rebecca K. Helm, Cornell), a federal magistrate judge (Judge Andrew J. Wistrich, CD Cal.), and a law professor (Jeffrey J. Rachlinski, Cornell), the article reports on empirical research indicating that “arbitrators perform about the same as judges in experiments designed to detect the presence of common cognitive errors and excessive reliance on intuition.”  Specifically, the authors conclude that the study demonstrated that “elite arbitrators specializing in resolving commercial disputes” suffer from three of the same “cognitive illusions” that [different types of] judges suffer from: the conjunction fallacy, the framing effect, and the confirmation bias.

While I will not get into the cognitive weeds here, I share a few observations about the article.  First, I question the value of data from a “Cognitive Reflection Test” that asks participants to decide mathematical questions (e.g., “A bat and ball cost $1.10 in total.  The bat costs $1.00 more than the ball.  How much does the ball cost?”) rather than weigh evidence and apply facts to legal rules.   [This test was designed to find out whether participants rely too heavily on intuition as opposed to deliberation when making decisions.]  Being good at answering those kinds of questions might indicate a skill in a certain kind of mathematical reasoning, but that skill might not translate into skill in evaluating credibility of witnesses, which is what arbitrators do all the time.  (Judges are less often called upon to evaluate credibility; that function is most often left to juries.)  Again, I am no expert in cognitive science, so perhaps there is a scientific foundation to the translation I mention, but my “intuition” (a cognitive process that is tested in the study) tells me it is not foolproof.

Second, I wish the study had broken down its population of arbitrators into lawyer and non-lawyer arbitrators.  I suspect that arbitrators who are lawyers are more likely to mimic judges’ cognitive decision-making errors as opposed to non-lawyer arbitrators.  I think such a sub-study could shed more light on the controversial question as to whether arbitrators should be lawyers.

Third, I wonder whether the authors chose the title they did to increase their shot at a good placement in a law journal, or because they truly questioned whether arbitrators are human.  I am half-joking here.  Of course arbitrators are human.  I am an arbitrator. Perhaps I am a bit thin-skinned, but I worry that an article that poses the question in the first place, even if it was just to catch some attention, perpetuates the myth that somehow arbitration is not a fair process because arbitrators are biased or poor decision-makers.

In any event, it is a very interesting article reporting on a very interesting study.  If nothing else, I enjoyed taking the cognitive reflection test and learning that I scored significantly higher on deliberative decision-making than the tested pool of arbitrators!

Jill Gross is a Professor of Law and the Director of the Investor Rights Clinic at Pace Law. She teaches the Investor Rights Clinic and Seminar, Mediation and Arbitration, Professional Responsibility, and Securities Litigation and Enforcement. She has published numerous law review articles in the area of dispute resolution and investor justice, and has been quoted in the national media on issues relating to securities arbitration. She is also a contributor to ADR Prof Blog.