International arbitration: the mechanics of persuasion and how decisions are made

As in any adversarial proceeding, international arbitration concerns itself with the decisions tribunals will make, and what factors might impact these decisions. Arbitration cases are oftentimes factually complex, handled by talented teams of lawyers making thoughtful arguments on both sides. As such, beyond the materiality of a given case, advocacy skills play a significant part in the process of persuasion. Using the insight gained from panelists, the purpose of the conference was to answer the question: How can lawyers sway an arbitrator?

The lively panel discussion, moderated by Melissa Ordoñez, counsel on Hogan Lovells’ Paris International Arbitration team, featured distinguished scientist Dr. Thomas Boraud, Director of the Institut des Maladies Neurodégénératives, renowned scholar Dr. Mihael Jeklic, Director of Professional Skills at King’s College, as well as two of the most in demand counsels and arbitrators, Dr. Wolfgang Peter and Pr. Dr. Maxi Scherer.

The debate was organized along three main themes focusing respectively on: the functioning of the human brain and its impact on decision-making, the role of science in the judicial and arbitral decision-making process, and effective persuasion strategies or "practical tips."

A recording of the conference can be found here.

The functioning of the human brain and its impact on decision-making

Lawyers are often taught that persuasion in law requires ethos (credibility), logos (reasoning), and pathos (appeal to the emotions). While in theory this remained true to the panelists, they also walked us through how, in practice, effective persuasion requires us to understand and be able to navigate how the human brain works, and what types of cognitive processes escape us.

Dr. Boraud and Dr. Jeklic first insisted on the limits of human beings’ rationality. They further described the duality of our brain: within it coexist a fast automatic system animated by unconscious processes in addition to a slow deliberative system animated by intentional and conscious processes.  

Since our judgement is impacted by both systems, it cannot be as predictable as one would initially think. Applied to judicial decision-making, for example, this duality was exemplified in the finding of J. Levav’s experiment on parole cases which showed that, regardless of the facts of a given case, judges are consistently more lenient after taking a break – “You are anywhere between two and six times as likely to be released if you're one of the first three prisoners considered versus the last three prisoners considered.”

Dr. Jeklic therefore reminded us that, even when there are high stakes at play, decision-making is not necessarily determined by material elements or evidence, but also by external factors and the cognitive structure of the human brain.

As such, he insisted that, as a lawyer, “to persuade you have to be able to understand how cases are decided.”

The judicial and arbitral decision-making process

With regards to the judicial and arbitration decision-making process, Dr. Jeklic distinguished the easy cases, in which “facts convincingly lend themselves to a single legal interpretation” that “should result in predictable decisions” ("low" noise decisions) and complex cases “with a lot of information or two equally persuasive legal narratives which entail “more noise” and can result in a cognitive load” ("high" noise decisions). In this regard, Dr. Boraud highlighted the extent to which "noise," in other words the information overload, inhibits decision-making.

This observation is particularly relevant to arbitration cases and proceedings that are very long, and prone to information overload.

When asked about their perception of arbitrators’ decision-making process, Dr. Peter answered that arbitrators decided on a “step-by-step” basis and provided the following insight:

• He insisted that decision-making is quite incremental in arbitration and quoted a survey which showed that arbitrators tended to form their main opinion of a case at the main hearing. He therefore concluded that even though post hearing briefs should not be overlooked, arbitrators, in his view, usually already formed their views prior to the post-hearing stage.
• He added that, like any other humans, arbitrators are not totally rational, nor are they immune to biases. Therefore while a good arbitrator strives to work objectively, he admitted that arbitrators may be “influenced by the education they have received, their background, opinions on political economy and finance, and sometimes, feelings of social responsibility.”
• Finally, even when some argue that arbitrators may have some loyalty to the parties that appointed them, there are checks and balances throughout the decision-making process as arbitrators often work as part of a three-body panel, which leads to satisfactory awards.

Similarly, to the question "Do arbitrators have cognitive biases?" Pr. Scherer unequivocally answered “Yes, like everybody else,” and insisted on the interaction of the automatic and the deliberative systems in the decision-making process. To illustrate the cognitive limits of legal practitioners, she mentioned two important biases arbitrators might suffer in their decision-making process:

• Hindsight bias: the tendency, upon learning of the outcome of an event to overestimate one's ability to have foreseen the outcome. To illustrate this bias she discussed an experiment in which lawyers were divided up into two different groups and were given the same set of facts, except that one group knew that damages resulted after a hypothetical flood. The question they had to answer was: “Did the party negligently fail to take measures against the flood and were they negligent?” Twice as many lawyers who knew the outcome of the flood found that there was negligence. 
• Confirmation bias: searching and assessing information in a way that confirms one’s view. To mitigate this bias and not form a view in favour of the claimant, Pr. Scherer recommended that arbitrators do not discuss their case in too much details before they have both parties’ submissions. 

Effective persuasion strategies

When it comes to difficult cases, and in order to avoid cognitive saturation, Dr. Boraud and Dr. Jeklic explained that to be persuasive lawyers needed to (i) “be clear and concise” and to (ii) “tell a story.”

Additionally, Dr. Jeklic insisted on the mechanism of "epistemic trust." As epistemic trust is both a tool for persuasion and a proxy for counsels’ “credibility,” it is of direct interest for lawyers. To establish epistemic trust, Dr. Jeklic explained that it was advisable that a lawyer adhere to the following:

• Present yourself and be recognized as an intentional agent, and let your audience know that you understand them.
• Use "ostensive cues" such as “eye contact, listen, nod, use first name, feedback loop.”

Indeed, judges and arbitrators tend to be biased towards individuals whose views are proximate to their privately held opinions because these individuals feel more trustworthy.

Commenting on the notion of epistemic trust, Pr. Scherer emphasized the importance of ostensive cues as well as the necessity to have the emotional intelligence to adapt to your audience – i.e., not appear unnecessarily aggressive when this attitude is unwarranted.

Dr. Peter was invited to share tips on what to do or refrain from doing when it comes to persuasion. He first confirmed that advocacy does make a strong difference in difficult-to-decide cases, that he described as a “still ball rolling on a razor blade.” He then provided the audience with the following tips:

• Present cases with clarity, in a comprehensive manner.
• Present arguments in a way that will make it very difficult for the arbitrators to make the adverse decision.

On this last point, Pr. Scherer, when asked what she considered to be effective advocacy, mentioned the "impression formation" study undertaken at London Metropolitan University that showed how the order of information presented about a hypothetical person affected participants’ final impression of that person.

By analogy, she emphasized the importance of organizing one’s arguments and gave the audience her vision of the most persuasive advocacy structure: start with your strongest arguments, end with the weakest, and save one strong point to conclude your arguments with.

Conclusion

Generally speaking, successfully handling complex high-stakes arbitration cases requires a strong team, experience, and a solid knowledge of a case and of the law. However, beyond this, the discussion panel allowed practitioners to explore what else came into play at the interpersonal level in terms of persuasion. Indeed, in difficult cases, a skillful lawyer may be one who can not only navigate decision-makers’ limited rationality and their cognitive shortcomings, but also one that can use them in his or her favor, as a tool for persuasion.

Authored by Thomas Kendra, Melissa Ordoñez, Lédéa Sawadogo-Lewis, and Eva Keita.