Yes, your arbitrator, your mediator, your judge, your jury is biased. Litigators seek an unbiased panel when what they should really do is to understand that no panel, or jury, or judge will ever be without bias. Everyone has biases, including you—explicit and implicit. We are all the product of our culture, our surroundings, our innate preferences. In spite of our best intentions to act objectively and with complete neutrality, everyone views the world through a personal lens, a subjective perspective and… with a particular set of biases.
What can you do if you know that the field is never perfectly level? Understanding the science is a first step. It helps to explain what we may know intuitively. It is never exclusively about your message or your arguments.
When trying to eliminate bias, we generally focus on explicit bias. We may research a potential arbitrator for clues to his or her biases based on background and experience.
We ourselves are likely to be aware of our own explicit bias. We know whether we are Yankee fans or Red Sox fans. We know whether we are conservative or liberal because we hold certain beliefs and as a result we tend to vote for the Democrat or the Republican.
These preferences influence how we perceive and interpret information. Therefore, we will likely believe either that the stories on Fox or on MSNBC are factual depending on whether we are already a Republican or a Democrat. It is unlikely that the reporting on the NBC Nightly News, let alone Fox or MSNBC, will change our mind.
We are also subject to implicit or unconscious bias. These biases are more insidious because they may be irrational and outside of our knowledge and control. We do not choose or even want these implicit biases and would be unlikely to list them on an arbitrator disclosure form.
In his speech on race during the 2008 campaign, President Obama told a story about his beloved white grandmother.
I can no more disown [Reverend Jeremiah Wright] than I can my white grandmother—a woman who helped raise me, a woman who sacrificed again and again for me, a woman who loves me as much as she loves anything in this world, but a woman who once confessed her fear of black men who passed by her on the street, and who on more than one occasion has uttered racial or ethnic stereotypes that made me cringe.
In spite of her devotion to her grandson, even President Obama’s grandmother had implicit racial bias. Had she been on a jury, it is likely that implicit bias would have influenced her perceptions of witnesses, their testimony, and the narrative. It is also likely that voir dire would not have disclosed her bias.
Whether presenting arguments to a jury, seeking to persuade a mediator, or eliciting testimony before an arbitration panel, a litigator should recognize the relationship between form and substance. In fact, implicit bias explains why we tend to conflate the messenger with the message. We form a first impression of someone based largely on appearance and presentation. Thereafter we have a bias for maintaining coherence with our first impression. If we form a favorable impression, we are likely to believe the message. If the first impression is unfavorable, the messenger and the message are less likeable and credible going forward.
You may have read about the Nixon/Kennedy debate. Implicit bias explains why demeanor and appearance trumped content. Those who listened on the radio focused exclusively on the debaters’ content. They overwhelmingly judged Nixon the winner. TV viewers reached a different conclusion. They much preferred Kennedy’s athletic, energetic presentation to Nixon’s who, having declined make-up, had a 5:00 shadow and perspired profusely. TV viewers reacting to non-verbal messaging overwhelmingly judged Kennedy the winner.
A more recent example is the first Obama/Romney debate in 2012. Romney was overwhelmingly thought to have trumped Obama in the first debate. Romney made eye contact and was forceful and energetic. Obama looked down at his papers and seemed uninterested and detached. Once again, when the speaker was perceived favorably, the message resonated more strongly than when the speaker was not.
Credibility—yours and your witnesses’—will depend on a first impression. You will be judged by how you present yourself physically, how quickly or slowly you speak, the volume and pitch of your voice, your posture, and eye contact. What you and your witnesses wear may be even more important than your well-constructed arguments.
If you, your client, or your witnesses are initially perceived as credible, you will benefit from the resulting bias that whatever you say is more likely to be believed. Similarly, if the initial impression is unfavorable, you will have a challenge trying to overcome that bias going forward. The old cliché "you never get a second chance to make a first impression" is rooted in the psychology of implicit bias.
So, in spite of a sincere dedication to remaining as fair and impartial as possible, your judge, your jury, your arbitrator, your mediator, and you are subject to implicit and explicit bias. Understanding it is the best way to deal with it.
Many are surprised at what they learn about their own submerged biases. Take the short test today!
Keywords: alternative dispute resolution, litigation, bias, credibility, impartiality