Are Arbitrators Human?

27 Pages Posted: 18 Nov 2016

See all articles by Rebecca Helm

Rebecca Helm

University of Exeter - School of Law

Andrew J. Wistrich

California Central District Court

Jeffrey J. Rachlinski

Cornell Law School

Date Written: December 2016

Abstract

Empirical research has confirmed the correctness of the legal realists’ assertion that “judges are human.” It demonstrates that judicial decisions are sometimes tainted by bias, ideology, or error. Presumably, arbitrators are “human” in that sense too, but that conclusion does not necessarily follow. Although arbitrators and judges both umpire disputes, they differ in a variety of ways. Therefore, it is possible that arbitrators’ awards are either better or worse than judges’ decisions. This article reports the results of research conducted on elite arbitrators specializing in resolving commercial disputes. Our goal was to determine whether, like judges, arbitrators are subject to three common cognitive illusions — specifically, the conjunction fallacy, the framing effect, and the confirmation bias. We also wanted to find out whether, like judges, arbitrators exhibit a tendency to rely excessively on intuition that may exacerbate the impact of cognitive illusions on their decision making. Our results reveal that “arbitrators are human,” and indicate that arbitrators perform about the same as judges in experiments designed to detect the presence of common cognitive errors and excessive reliance on intuition. This suggests that arbitrators lack an inherent advantage over judges when it comes to making high‐quality decisions. Whether the situation in which arbitrators make their awards is more conducive to sound decision making than the setting in which judges make their rulings, however, remains unclear.

Suggested Citation

Helm, Rebecca and Wistrich, Andrew J. and Rachlinski, Jeffrey John, Are Arbitrators Human? (December 2016). Journal of Empirical Legal Studies, Vol. 13, Issue 4, pp. 666-692, 2016. Available at SSRN: https://ssrn.com/abstract=2871698 or http://dx.doi.org/10.1111/jels.12129

Rebecca Helm (Contact Author)

University of Exeter - School of Law ( email )

Streatham Court
University of Exeter
Exeter, EX4 4QJ
United Kingdom

HOME PAGE: https://socialsciences.exeter.ac.uk/law/staff/helm/

Andrew J. Wistrich

California Central District Court ( email )

Los Angeles, CA 90012
United States

Jeffrey John Rachlinski

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
607-255-5878 (Phone)
607-255-7193 (Fax)

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