Introduction
On 19 March 2026, the XIV International Arbitration Meeting took place in Coimbra. There I attended a particularly thought-provoking panel entitled: “The Arbitrator and Objectivity: Myth or Reality?” This panel reminded me of the film 12 Angry Men, more specifically, the character of Juror #3, played by Lee J. Cobb.
In the film, twelve jurors must decide whether an eighteen-year-old boy is guilty of murdering his father. Although the jurors are not arbitrators, they are nonetheless responsible for determining the facts. The psychology of Juror #3 is especially striking: his personal biases, particularly those tied to his strained relationship with his own son, cloud his judgment. Only when he recognises that his insistence on the boy’s guilt is driven more by personal grievances than by the actual facts of the case does he finally change his vote.
Reflecting on this, I began to consider how arbitrators deliberate and how we, as lawyers, might most effectively persuade them to decide in favour of our claim.
In arbitration, our objective from the outset is to persuade the arbitrators of the merits of our claims. Arbitrators approach the case with not only their understanding of the facts, but also their own potential biases. Our role is to help them set aside those biases and focus on the decisive facts presented. During the proceedings, we advance this goal through our pleadings and, at the hearing, through clear opening statements and targeted cross-examinations of witnesses and experts. At the end, we have the post-hearing briefs. Ultimately, success may depend on understanding the psychology of the arbitrators and presenting the key facts in a manner that convinces them to rule in our favour. The question that remains is: how can we most effectively address and mitigate those biases?
To tackle these issues, it is important to identify the potential biases an arbitrator may fall victim to. Some well-known cognitive biases in psychology include anchoring (relying too heavily on the first piece of information received), confirmation bias (privileging information that supports pre-existing beliefs), hindsight bias (believing events were predictable after they occur), availability bias (judging the likelihood of events based on how easily examples come to mind), framing effects (where decisions are influenced by how information is presented), and attribution error (where actions are attributed to a person’s character/personality rather than considering situational factors).
In legal practice, lawyers must address these same biases. How might a lawyer apply relevant strategies to mitigate the specific biases identified above? The first step is to recognise that biases are natural and often operate unconsciously. From there, it is important to implement intentional strategies to counteract automatic thinking patterns.
1. Anchoring bias
The first bias mentioned was anchoring bias. This is when someone relies too heavily on the first piece of information they receive, using it as a reference point, even when it might not be fully relevant or accurate. Arbitrators come to hearings with a lot of information from the written pleadings and evidence filed by both parties. Some of this initial information can become a mental anchor.
To address this issue, any potential biases should be challenged or clarified during the hearing. In the opening statements, the narrative can be framed to direct the arbitrators’ focus toward the key facts and away from anchored assumptions. This narrative becomes the foundation for cross-examination, where the other party’s version of events is systematically tested. During redirect, the witness’ credibility should be reinforced and it should be demonstrated that the arguments presented are grounded in the most relevant facts. Ultimately, the goal is to guide the arbitrators’ attention to information that truly matters, rather than allowing their decisions to be swayed by initial, potentially biased reference points.
2. Confirmation bias
Let us now deal with confirmation bias. This is when we favour information that supports what we already believe and downplay or ignore information that challenges our existing view.
It is not always obvious whether an arbitrator starts with a bias, but one can watch for signals during the hearing. While one might suspect that the co-arbitrator appointed by the other party will lean toward their position, it is advisable to remain cautious in assuming bias. Their questions or comments may reveal a tendency toward certain assumptions. By identifying potential confirmation bias in real time, the approach being pursued can be adjusted—using it to clarify, reframe, or reinforce the facts to guide the arbitrators back to neutrality and toward your party’s strongest argument.
3. Hindsight bias
Hindsight bias is when people believe, after something happens, that it was more predictable than it actually was. It is important to remind arbitrators not to judge decisions based on outcomes now known to them, but rather on the facts and context available at the time. It is about fairness—judging decisions based on what was known, not how things turned out.
In damage quantification, it is essential to evaluate decisions based on the information available at the time they were made, rather than with the benefit of hindsight. The aim is to ensure that arbitrators focus on what was reasonably foreseeable when actions were taken, especially when experts assess financial impacts. By addressing hindsight bias, we help promote a fair assessment grounded in the facts as they existed at the relevant time.
However, it may be appropriate to use subsequent information to demonstrate that a decision or projection was reasonable—not by claiming that hindsight made the outcome obvious, but by showing that later events confirm the logic of earlier choices. For example, one can argue: “Based on what was known then, this subsequent outcome supports the reasonableness of our position.” In this way, hindsight bias can be avoided by rooting reasoning in contemporaneous knowledge and simply using later evidence to validate—not retroactively assert—that everything was predictable.
Ultimately, it is a subtle balance: as long as arguments are anchored in what was known at the time, they do not revise history. The goal is to use subsequent events to support the reasonableness of past decisions, without assuming that those outcomes were inevitable or obvious from the start.
4. Availability bias
The fourth bias was availability bias. That is when people judge the likelihood of something based on how easily examples come to mind—often giving more weight to recent or vivid information, even if it is not truly representative.
Availability bias can be strategically used by offering clear, memorable examples that make arguments stick. At the same time, one must be ready to counter any vivid anecdotes or convenient examples presented by the other party that might bias the arbitrators. By challenging overly simplistic or emotionally striking examples, the arbitrators are more likely to return to a more balanced, fact-based view of the case.
5. Framing effect
The fifth bias mentioned was the framing effect. This occurs when people’s decisions are influenced by how information is presented rather than just the facts themselves.
By being mindful of the framing effect, one can craft opening statements, visual aids, and flow of argument intentionally. By framing the narrative thoughtfully, the arbitrator’s perspective can be guided—not by distorting facts but by emphasising what matters most, so the arbitrator sees the case through the most favourable lens.
6. Attribution error
The next bias mentioned was attribution error. This is when people attribute others’ actions to their character or personality rather than considering situational factors. The fundamental attribution error involves blaming someone’s behaviour on their character—assuming, for instance, that they are careless or dishonest—rather than recognising external circumstances that might have influenced them. In other words, we overemphasise personality and underemphasise context. In arbitration, the aim is to ensure that actions are judged in context, not based on perceived character flaws.
While arbitration is often company versus company, real people—executives, witnesses, decision-makers—are behind those companies. Their actions and reputations matter. Therefore, protecting them from unfair character assumptions—or using legitimate concerns about the other party’s behaviour—is key.
Lawyers must highlight the circumstances explaining actions and defend their witnesses or clients from character-based attacks. If the other party’s actions are truly questionable, concerns can be legitimately raised—but they must always be tied back to facts. Ensuring that the arbitrators remain focused on evidence rather than unfair character assumptions can be key to a positive outcome.
Conclusion
Ultimately, all these efforts—from identifying biases to actively addressing them—are aimed at enabling the arbitrators to reach a well-informed and balanced decision, which ideally reflects the merits of our case. Our objective as lawyers is to guide the arbitrators toward the most justified outcome. Recognising and mitigating bias is not about assigning blame; rather, it is about strengthening the credibility and success of our claim.
