The Tribunal Mind: Tribunal Cognition and the Science of Group Decision-Making
Keynote: Canada Arbitration Week 2025, Montreal
Let me start with two questions:
- How do tribunals actually think?
- Can we redesign Tribunal deliberations to promote better decisions?
A lot has been written about cognitive bias in international arbitration – covering things like confirmation bias, recency bias or – the worst offender – overconfidence.
Cognitive glitches like these are critical to be aware of if we want to improve our own thinking. But the conversation usually stops there – at the level of the individual. This assumes that each arbitrator is a discrete and self-contained decision-maker.
But most arbitral awards are not produced by individuals. They’re produced by groups of individuals – usually panels of three. And that changes everything.
So today I want to offer a different lens: to look at decision-making in international arbitration not at the level of individual psychology, but the more complex, the dynamic level of tribunal cognition: how tribunals think, feel, influence and decide as a group.
Pitfalls of Group Decision-Making
According to a recent study, 78% of people want to hear bad news first – so here it is:
Group decision-making might sound fair, democratic and rigorous. But psychology tells a more complicated story. There are two particular hazards I want to highlight here.
1. Groupthink
The first is groupthink. This is a classic psychological phenomenon where a group’s desire for harmony leads it to make consensus decisions that are made without thorough or complete critical evaluation – and often result in irrational or flawed outcomes.
According to Irving Janis, the Yale psychologist who pioneered the research on this topic, the main factor contributing to groupthink is the degree of cohesiveness, amiability, or what he called esprit du corps – within the group. This is the feature that leads individuals to prioritise maintaining friendly relationships and to avoid conflict over raising controversial ideas or independent thinking.
There are several side-effects of groupthink. Most relevant in this context, we have:
- The illusion of invulnerability. This gives a tribunal an inflated sense of certainty that their decision is the right one. Overconfidence at a group level in other words.
- Self-censorship can occur, where individuals withhold from expressing dissenting views or from questioning the current decision.
- And then the illusion of unanimity, where silence from individuals is – wrongly – perceived to mean that they agree.
These symptoms can have fundamental, sometimes disastrous consequences.
A classic real-world example is the Space Shuttle Challenger disasterin January 1986. There was intense media interest in this particular launch because it was the first mission involving a civilian crew member – school teacher Christa McAuliffe. So NASA project leaders were under even greater pressure than usual – in particular not to delay the launch.
But weather forecasts were predicting record low air temperatures for a shuttle launch – minus 8 Celsius overnight and minus 3 at launch time. This was a problem. The engineers who worked on the solid rocket boosters were concerned that the cold air would impact the resilience of the booster’s O-rings. These are thick rubber rings 38 feet in circumference that sit between the joints of the rocket, sealing them together.
The evening before the launch, the engineers voiced their concerns to the NASA project team, recommending delaying the launch until temperatures were over 12 degrees Celsius – where the O-ring’s performance had actually been tested. But with the backdrop of media pressure, NASA pushed back heavily against the engineers’ concerns and the engineering firm’s leadership eventually relented – giving a green light.
73 seconds after blast-off, the O-ring seal failed in the right solid rocket booster causing hot pressurised gas to leak into the joint and burn into the external propellant tank – as a result, the shuttle stack was propelled with forces that tore the orbiter apart and all 7 crew members died.
Groupthink here meant that NASA’s strong desire to obtain consensus and to avoid delay overrode critical safety concerns, leading to a catastrophic decision without proper evaluation of the risks.
There are several potential mechanisms behind groupthink:
- Deferring to others’ preferences in order to preserve harmony or social capital.
- Failing to share knowledge.
- Underweighting dissenting voices.
- Social loafing – when individuals are less likely to think for themselves, because they are in a group.
- Amplifying individual cognitive bias, like those we mentioned at the start.
Given the culture of international arbitration, the strong social network element, the camaraderie – and the pressure arbitrators may feel in preserving future appointment opportunities, groupthink is one of the most significant risks to be aware of in tribunal decision-making.
2. Group polarisation
The second decision hazard in tribunal psychology is group polarisation. This refers to the tendency for group discussions to lead members to adopt more extreme positions than they originally held as individuals.
Interestingly, polarisation is a much greater risk where groups are newly-formed – and where they are undertaking new tasks such as making a novel decision. So highly relevant to arbitral tribunals.
Unfortunately, group polarisation has been found alive and well in many legal contexts. For example, jury studies show that after deliberating together, mock jury members often decided on punitive damages awards that were either larger or smaller than the amount any individual juror had favoured prior to deliberation. When jurors favour relatively low awards, discussion would lead to an even more lenient result; by contrast, if the jury was inclined to impose a stiff penalty, discussion would make it even harsher.
Another classic study, conducted in 1973, looked at whether Federal District Court judges in the US made different decisions when sitting alone versus in small groups. Judges were given a hypothetical case involving a challenge to the constitutionality of a statute or government policy, and the judges had to choose between a cautious course of action – upholding the statute or policy – or a more extreme one – striking it down as unconstitutional.
When sitting alone, judges opted for the extreme action about 35% of the time. But when sitting in panels of three, that figure jumped dramatically to 65%.
So we know that even highly trained legal minds are not immune to group dynamics.
In fact, group settings can significantly increase the likelihood of incomplete or extreme decisions.
There are a few mechanisms at play here but primarily, group polarisation happens because individuals become more convinced of their own views when they hear new and persuasive arguments supporting them. Relevantly for tribunal cognition, this sort of ‘informational influence’ is especially strong in discussions involving complex, intellectual issues.
So that’s the bad news for tribunal cognition.
Cognitive Assets of the Tribunal
Now the bit you’ve all been waiting for: the good news.
Collective intelligence
Research shows that – under the right conditions – groups can be smarter than any of their members. This is similar to the wisdom of crowds effect – and is the promise of the relatively new science of collective intelligence.
The seminal study here was published in 2010 by a group of MIT researchers lead by Anita Woolley. They wanted to know whether it was possible to measure the intelligence of a team or group – in the same way that we measure general intelligence or IQ of individuals.
They took 192 groups of people and gave them various problem-solving tasks like brainstorming, making collective moral judgments, negotiating.
Using factor analysis, they found that each group had an identifiable, measurable “c factor” which explained its test scores and could accurately predict its performance on future tasks. This is collective intelligence or CQ.
Naturally, they wanted to know what lead to higher CQ. And interestingly, variables you would have thought played a role – didn’t:
- There was no correlation between a group’s CQ and motivation, satisfaction or team cohesion.
- There was also only a weak correlation between the group CQ and the IQ of the individual members. What this means is that a group of highly intelligent individuals can perform horribly as a team, while a group of average IQs may outstrip the Mensa members on collective tasks.
There was another surprising finding in this research I want to share. And that is – the more women in the group, the more intelligently it performed – though there was an interesting drop-off for all-women groups.
Now in case the cognitive drawbridge has started to raise among approx. 50% of you, some important caveats:
- First, as I said, the effect fell off with all-women teams. So groups need gender mix to function at their best.
- More fundamentally, it isn’t gender per se that mediates the CQ boost. Further analyses were done on all of the groups and what the researchers found is that the key variables predicting intelligence were turn-taking within conversations and, relatedly, social sensitivity.
- And in general, women score more highly than men on measures of social sensitivity – hence the unexpected gender result in the study.
The research on collective intelligence shows that it’s not just who’s in the tribunal – but how they interact – that affects the quality of its functioning.
Cognitive diversity
This brings us to cognitive diversity. Cognitive diversity reflects differences between individuals in knowledge, processes or actions within a group context. This is distinct from – though may stem from – demographic differences such as gender and ethnicity.
In general, studies in this area find that when groups include diverse thinking styles, they perform better – especially on complex tasks.
One study looked at how groups approached solving a classic logic puzzle – the Wason Card Sorting Test. For your own entertainment, this is the test:
- You have 4 cards in front of you: 2 letters, 2 numbers.
- You have to answer this question: Which card(s) should you turn to test the rule: “All cards with vowels on one side, have an even number on the other”.
- The intuitive but wrong answer is to turn over 1 even number + 1 vowel.
- The correct answer is to turn over 1 odd number + 1 vowel.
Researchers took data from 500 small groups completing this puzzle, and analysed the transcripts of the group conversations and compared the groups’ initial answers with their answers following the joint discussion. What they found is that greater cognitive diversity – measured by group size, diversity of initial ideas expressed and diversity in discussion content – consistently led to more successful group deliberation and better decision-making.
There is important nuance here. Too much diversity can actually hamper group function – particularly where it facilitates intragroup conflict or hinders agreement on common goals.
One study looking at different cognitive styles – that is, the way that team members encode, organise and process information. They found a curvilinear relationship – an inverted U-shape – between the degree of cognitive diversity in the group and its collective intelligence.
So, there may be a Goldilocks degree of difference. But difference is essential for optimal group intelligence and decision-making.
Neural synchrony
Here’s where neuroscience adds something exciting. Hyperscanning is a relatively new method where researchers scan multiple brains at once – brains that are actively interacting with one another in real time.
Usually, individual brains operate in their own unique way, with electrophysiological brain waves – the rhythmic electrical patterns produced by neurons in the brain – appearing independent when compared side by side. But recent hyperscanning studies show that when people cooperate effectively, their brains literally start to sync up. Brain waves fall in line such that neural synchrony increases in well-functioning groups. This synchrony correlates with – and can reliably predict – better collaboration, better decisions and even greater trust.
In other words: thinking together is not just a metaphor. It’s biological.
So the cognitive assets of a tribunal, in intelligence, in diversity, are important considerations with real neural implications for the way they will behave as a group.
How Tribunals Actually Function
So what actually happens inside a tribunal?
Let’s talk briefly about some of the invisible dynamics that shape group deliberation. These are little talked about because they are hard to pin down – but they are also the most powerful forces that shape interpersonal dynamics like those within international tribunals.
Empathy & Trust
First, empathy and trust are the bedrock of constructive group work – but they are fragile, especially in culturally diverse panels.
Neuroscientific studies show that when people feel understood by others in a group, their brains become active in reward-related areas – those linked to food, money, recreational drugs. But when people feel excluded or misunderstood, you see brain activity in areas linked to social pain – fascinatingly, the same brain areas that code for physical pain.
Now think about tribunals in international arbitration. You may have different cultural backgrounds, you have intense time pressure, you may have language barriers, different legal traditions. That’s a tough environment for empathy and trust – and something which may need sensitive, deliberate work to develop.
Influence
Then we have dynamics of personal influence.
Many factors influence our influence. Status, seniority – so are you chairperson or wing? Confidence is important – it’s not what you say but how you say it. Again, there may be important cultural variations here in expressed or perceived confidence.
Something as apparently benign as who speaks first can make a huge impact to influence within a group. Jury studies which analyse patterns of jury deliberation find that in 90% of cases the preferred verdict at the start of deliberations ultimately became the jury’s final verdict. So think carefully about who is speaking, when – and what we take from that communication.
Ingroup bias
Finally, we have ingroup bias. This is where we unconsciously favour ideas from people we identify with – and ignore or critique ideas from those we don’t.
Identity here can be very broad – it could be something obvious like gender, age or nationality. But it might be something like shared background, native language, law firm – or even something as trivial (I should not say trivial!) as liking the same hockey team.
These invisible dynamics show us that tribunal deliberations aren’t just a clean debate of legal arguments between rational actors. They are a complex dance of emotion, identity and influence.
What This Means for Arbitration
So what do we do with all this?
Luckily, armed with relevant insights from psychological science, we can design tribunal culture to improve cognition and decision-making within the group.
Practical strategies should start at the beginning – with appointments.
- We should look beyond identity and appoint for cognitive diversity – knowing that difference unlocks optimal performance. Yes, gender, nationality and legal tradition matter. But so do experience diversity, thinking styles and even temperament. Is this someone who asks questions or makes statements? Someone who changes their mind, or rarely does?
- Tribunals can take an organised and structured approach to deliberations. Encourage turn-taking. Ensure that you’ve heard – and really heard – from everyone. Communication – not just of opposing ideas but of knowledge others might have missed – is repeatedly found to be critical in enabling a group to reach the best decision. Communication is – as ever – key.
- Relatedly – the Chair should avoid giving their view first. Chairs are often more senior, more experienced, as a result (perhaps?) more confident. But the natural status of the role will also serve to anchor all subsequent discussion and consideration. Newer arbitrators in particular may feel uncomfortable disagreeing with a senior, experienced arbitrator, regardless of how preliminarily their view is expressed.
- Individual arbitrators can be assigned the specific role of devil’s advocate. Perhaps different devils for different issues. The best devil’s advocacy is where it arises naturally – because people actually disagree – but in case all tribunal members appear to agree at least initially, this formal role can ensure that ensure prevailing views are adequately stress tested.
- Another idea is to invite written reflections from each member of the tribunal before oral deliberations begin. This can help ensure that individual perspectives are fully formed and independently considered, reducing the risk of groupthink, premature consensus or dominant voices unduly shaping the discussion.
These procedural designs are not gimmicks. They are methods of scaffolding better cognition. Of helping a tribunal think more effectively as a collective.
We should think of tribunals as cognitive ecosystems. Systems that generate their own reasoning. And systems that can be tuned and supported.
One Good Idea
And so, in the spirit of this conference’s theme – One Good Idea – here’s mine:
Consider Tribunal Intelligence. This idea that each Tribunal will demonstrate different degrees of collective intelligence depending on the various factors we’ve talked about today.
With that in mind, if we want better decisions, we can’t just focus on evidence and procedure. We need to support the way tribunals think – as a collective brain.
The challenge – and the opportunity – is to engage in conscious deliberation design to promote tribunal intelligence and better decisions.
Et voilà.
Dr Ula Cartwright-Finch
Montreal, June 2025
Your Brain on Arbitration: The Case for Change
Keynote: Edinburgh International Arbitration Festival 2024
One of the most exciting parts of my studies at St Andrews was discovering how the brain can change.
Neuroplasticity
50 years ago, the idea that brain anatomy could change at all was unthinkable. It was widely accepted that while our brains are malleable when we’re young, they gradually harden into a fixed structure by the time we’re adults – like clay in a kiln.
It was also believed that we are born with a fixed number of neurons, and once they’re lost through damage or decay, they can never be replaced. Hence, “you can’t teach an old dog new tricks”.
Thanks to modern neuroscience, we now know that the adult brain changes continuously throughout our lifetime – in response to what we experience and what we do. When we practice a skill, or repeat a thought, connections between neurons get stronger and specific brain regions get bigger through neurogenesis – the growth of new brain cells – or by the formation of new pathways.
The net effect of this neuroplasticity is that we get better at the activities and thoughts we rehearse. So instead of hardening clay, the brain is more like playdough.
Let me give you an example.
In the Burmese archipelago, and off the West Coast of Thailand, nomadic tribes called Sea Gypsies spend most of their lives at sea. They swim before they can walk, and they live on clams and sea cucumbers, which they have to dive very deep to find. One tribe can dive over 75 feet without equipment – which, for reference, is about 12 Sean Connerys. What makes Sea Gypsies unique for our purposes is that they can see clearly at these great depths – without goggles.
Most of us can’t do this because when sunlight is refracted underwater, our visual system can’t interpret the light that hits our retinae. But the Sea Gypsies have learned to control the size of their pupils – shrinking them by 22% in order to see underwater. This is remarkable. We always thought that the way our pupils adjust to the light – getting larger in the dark and underwater – was an unconscious and automatic reflex.
In fact, the Swedish researcher who studied the Sea Gypsies taught this underwater ability to Swedish children – proving that what was once thought to be a reflex is in fact something our brain can learn to control.
International arbitration culture
This adaptability highlights how our brains change as a result of the culture we grow up in. International arbitration has its own distinctive culture. There are signature activities we learn and we follow:
- the directions we capture in procedural orders;
- the system we use to label exhibits;
- the way we address witnesses;
- even our diet during hearings – mostly biscuit-heavy.
But are these signature activities truly optimised to suit the way our brains work?
In this talk, we’re going to look at instances of mis-match between the way our brains function and certain elements of international arbitration culture. We’ll do this by exploring 3 features of human psychology linking them to arbitration.
- At the individual level, the limits of human cognition.
- At the interpersonal level, our inherent sociability.
- At the environmental level, the impact of external conditions on our thinking.
1. Our brains have limits.
First: while it isn’t entirely comfortable to admit, our brains have limits. Millions of pieces of information hit our sensory systems every second – but we can only process and understand so much.
Let’s look at some basic numbers.
Memory and attention
The capacity of our short-term memory – that is, the ability to hold new information in our head until it becomes long-term knowledge – is about 7 bits of information, give or take 2.
Our ability to focus attention? Also not great. The average attention span is anywhere between 2 seconds to around 48 minutes.
We can improve our memory and our attention a bit – for example, with certain types of meditation – but they both get worse when we’re stressed or sleep-deprived. Not great news for most of us in this room.
But what actually happens when we reach our cognitive capacity? Our decision-making, our memory – even our ability to detect information at all – begins to falter.
Recency bias
For example, when we are given lots of information over a period of time – like a tribunal over the course of a proceeding – we remember and we are influenced by the most recent bits much more than those sandwiched in the middle.
This is Recency Bias. One reason why Counsel (and arbitrators) love a post-hearing brief.
Vividness effect
Next, the vividness effect. Compared to bland or abstract facts, information that is emotionally striking, rich in sensory detail, is more likely to capture our attention, be remembered and influence our decisions.
This explains why I can still remember where I was the first time I heard an advocate comparing shares in a company to a dead cat.
Confirmation bias
Then, confirmation bias, where we selectively search for evidence that supports our view and we ignore, forget, explain away or otherwise downgrade evidence that goes against it.
According to a large survey in 2012, 88% of arbitrators – as a matter of practice – or on at least one previous occasion – form a preliminary view of the case by the time they walk into the merits hearing.
In view of the research on confirmation bias – how our perception, evaluation and recollection of evidence changes once we form an initial hypothesis – this relatively common practice deserves careful consideration.
Overconfidence
And finally, overconfidence.
In an interview in 2015, the late, great Daniel Kahneman said, if he had a magic wand, this was the one bias he would eradicate. Ironically, few people appreciate that there are actually 3 distinct types of overconfidence.
- Overestimation: believing you are better than you actually are at a task or a skill. Like planning 30 minutes for something that takes you 3 hours.
- Overplacement: thinking you’re better than others.
- Overprecision: excessive certainty that your predictions, your calculations of risk, are accurate.
This last variant of overconfidence is especially dangerous – because it stops us questioning our assumptions, challenging our initial conclusions, and remaining open to new evidence – ultimately undermining the fairness and accuracy of our decisions.
Why might we need to worry about this in arbitration?
Think about your long-suffering, document-deluged arbitrator. By the time they reach the hearing, they are supposed to have read, remembered, and understood thousands of pages of submissions, evidence, expert reports – not even counting the exhibits. They might be jet-lagged. They might be stressed. Their memory is almost certainly full trying to remember a new cast of characters.
If you were to design the perfect environment for cognitive overload, this would be it: an environment where the sheer volume of information forces us to rely on mental shortcuts to keep up.
So, my first point – in case you have forgotten – is that our brains have a bandwidth limit. When we exceed our data limits – as we so often can – our brains take shortcuts, and these shortcuts can create flaws in our decisions.
2. We are ‘group-y’
We are inherently ‘group-y’. One of the most distinctive and significant traits our species has evolved is the tendency – automatically and immediately – to form groups with other people.
The 1968 cult classic, Planet of the Apes, offers a fascinating case study of this instinctive habit. In the film, there are 4 species of ape: humans, chimps, gorillas and orangutans. On the first day of filming, actors donned their designated ape costumes. Later that day, during lunch in the cafeteria, the director noticed something strange. Despite being strangers and still in their costumes, the actors instinctively grouped together at tables according to their ape species. Gorillas sat with gorillas, chimps sat with chimps – perfect segregation.
What about arbitration?
If I didn’t know about overprecision, I’d put money on international arbitration being one the group-iest branches of law in the world. So far so group-y. So what?
In-group bias
Well, after we have mentally divided the world into different groups – those to which we belong, and ‘the others’ – we think, behave and feel differently towards them.
One important factor is that we like people like us. We prefer to be around people we share some important personal characteristic with, where we share an affinity. Often this is some visually obvious characteristic – gender, age, nationality – but it could be anything: same law firm, shared love of a particular sport, just the mutual belief that deep-frying a Mars bar is a perfectly acceptable dinner choice.
If we reflect on this, it’s something we experience all the time. At events like this, it feels easier – we are more relaxed – speaking to people we feel similar to. Conversely, it feels a bit harder – and we shy away – from speaking to people we feel different from.
The Usual Suspects Effect
This impacts many moments in an individual’s career. One specific instance is the selection of arbitrators.
Last year I published the results of a research project designed to map systematically for the first time, how parties – or more accurately, how Counsel – go about choosing an arbitrator. Spoiler: there is no system. This critical decision-making process is largely ad hoc.
But there were some commonalities. One was that, almost universally, the first method for coming up with potential candidates was what I call the ‘mental rolodex approach’ – where you sit back in the chair and think of names that pop into your head.
What’s wrong with this approach? Well, if you take affinity bias and add recency bias, what happens is Counsel coming up with the names of people they spoke to at last week’s conference, or who they saw and liked on a recent panel.
Given that arbitration lawyers are themselves from a relatively un-diverse range of backgrounds, this inevitably leads to a relatively un-diverse pool of arbitrators – hence, the Usual Suspects effect.
To wrap up my second point: we have natural instincts that shape how we connect with others. These instincts have been wired into us for survival – so they are very powerful. But they may not help us create the best outcomes in arbitration.
Breaking free from them requires conscious, deliberate effort – good intentions aren’t enough. So, my challenge for you today is simple: notice who you’re naturally drawn to – and then, make the effort to connect with someone else, as well.
3. The impact of external conditions
Third, and finally, our brains operate very differently under different conditions.
Deadlines and caffeine
Many of us have no doubt experienced firsthand that nothing motivates quite like a deadline. Counterintuitively, research shows that the more time we have, the less likely we are to do something. So, keep that in mind the next time you’re asking someone to complete a task
Caffeine works wonders on our energy and our focus because it blocks adenosine receptors – the neurochemical that makes us feel sleepy. On the topic of coffee – one image I cannot forget is from a NASA study looking at the effects of various substances on spiders’ ability to weave their webs…

The foreign language effect
One condition of particular interest in international arbitration is language.
Nelson Mandela said “if you talk to a man in a language he understands, that goes to his head. If you talk to him in his language, that goes to his heart”.
Science may think this an exaggeration but he had a point. What is clear is that we feel emotions much more strongly in our mother tongue than when we hear or read the same thing in a foreign language. This is most likely because there is a much stronger social context surrounding our learning of our native language.
One study from the fascinating field of neurolinguistics, asked German participants who could also speak English as a foreign language to read exciting passages from Harry Potter in both languages. Brain imaging showed that the amygdala – the part of the brain that processes emotions – became activated only when participants read the exciting passages in German but not in English.
As a result of this difference in emotional processing, language also influences our judgments and our decisions. When people assess something risky in their mother tongue, they over-rate the benefits and under-quantify the risks.
We also respond differently to moral decisions. You may be familiar with the trolley problem:
‘A train is very quickly approaching 5 people. It has a problem with its brakes and cannot stop. Those 5 people will die if the train continues on its path. There is a way for you to divert the train, but that would result in a man dying.’
In a famous study by a team in Barcelona, for those people who read this rather unpleasant dilemma in their first language (Castilian Spanish or Catalan), only 17% sacrifice the 1 man for the 5. But when they face the same dilemma in their second language (English), that figure increased to 40%.
This finding has been replicated several times in several languages – so it isn’t the case that English makes us coldly rational.
In international arbitration, where judgments and decisions are made by many people across multiple languages, this is a fascinating factor that cannot be overlooked.
So point 3 is that different external conditions change the way we think and behave – in arbitration as in life.
Conclusion
We share 98% of our DNA – our genetic code – with chimpanzees. And thanks to the Human Genome Project, we know exactly which genes differ between us. One of them is the gene that controls neuron production. Neurons are created through cell division – 1 becomes 2, 2 becomes 4 etc – and this continues longer in us than in chimps, so we end up with about 100 billion neurons; whereas chimps have brains a third the size.
Because each single brain cell can be connected to thousands of other cells, we have an exponentially greater number of neural connections. Think – 10 followed by at least a million zeros. This is why the brain is often described as the most complex object in the known universe.
It’s also why we are capable of massive and profound, structural change. So it’s time to learn some new tricks. To think about the typical systems and processes we use in arbitration – and ask ourselves, do they truly support the way we think and make decisions?
With intelligent adaptations, guided by psychological science and research, we can shape an international arbitration culture that is designed to work with our brains, rather than against them. And that is my case for change.
Dr Ula Cartwright-Finch
Edinburgh, September 2024