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