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Implicit Biases

Friday, April 04, 2025 11:46 AM | Anonymous

Measure Implicit Bias in Your Organization and Eliminate It Now! - HRProfessionalsMagazine

To what extent should arbitrators adjust their behavior for implicit biases? To what extent do such biases regularly impact on the arbitration process? 

What are your thoughts?

Comments

  • Friday, April 04, 2025 8:19 PM | Anonymous
    I might re-frame the issue a little. I think we should all be mindful of the fact that we are individuals and that we each have differences in experience, communication styles, personalities, values, language ability and outlook. These differences may be individual or across populations. We need to at least try to understand and respect these differences even if we do not identify with them or are offended (within the bounds of respectful communications). As arbitrators, we need to make sure we listen to people and allow people to be heard. As an advocate, I saw one instance where an older male arbitrator responded well to a more aggressive style by male attorneys and tended to allow more polite, deferential attorneys who tended to be female in that case to be talked over. I think we need to make sure hearings are fair for everyone - particularly for self-represented parties but also for counsel. We need to strive for self-awareness. Per Socrates, "Know thyself." Neutrality sometimes requires understanding and adjusting to differences.
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    • Saturday, April 05, 2025 2:04 PM | Anonymous
      Implicit bias is a phony construct built on the shaky foundation of DEI. Professionals, including doctors and lawyers, are increasingly resisting efforts that force their participation in such unscientific indoctrination. See e.g., https://www.wsj.com/opinion/implicit-bias-might-end-our-medical-careers-board-certification-dei-emergency-medicine-1622086d?mod=Searchresults_pos1&page=1; https://www.abajournal.com/news/article/proposal-for-mandatory-implicit-bias-training-is-rejected-by-texas-bar-committee. Recent scientific literature has also questioned the validity and reliability of cause and effect conclusions supporting so-called "unconscious" or implicit bias. In my opinion, the entire concept is an ideologically driven scam unworthy of serious attention.
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      • Saturday, April 05, 2025 3:36 PM | Doug Bonney
        “Implicit bias includes the subconscious feelings, attitudes, prejudices, and stereotypes an individual has developed due to prior influences and imprints throughout their lives.” https://www.ncbi.nlm.nih.gov/books/NBK589697/. Although it’s possible to find social scientists on every side of an issue, the clear consensus of the social science research is that implicit bias is a real phenomenon. See John T. Jost, et al., The existence of implicit bias is beyond reasonable doubt: A refutation of ideological and methodological objections and executive summary of ten studies that no manager should ignore, 29 Res. in Org. Behav. 39-69 (2009). In my view, arbitrators should think about any biases they may have and keep them in mind as they hear evidence and make their decisions.
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      • Saturday, April 05, 2025 10:33 PM | Anonymous
        The expression "is a phony construct" by Anonymous / Saturday, April 05, 2025 2:04 PM exhibits to me bias. There is little doubt in my mind, that people perceive biases where they do not exist or use commonly held beliefs in bias to their own personal advantage and we must guard against becoming biased in favor of people who are playing the bias card for their own self interest. To right off implicit bias as phone is to go to the opposite extreme.
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      • Tuesday, April 08, 2025 11:07 AM | Bill Colvin
        A couple of years ago, the AAA ACE course was about Implicit bias. Even before then, I had recognized that I respond and react in different ways to different people. Even before the ACE course, I knew that my responses and reactions were driven, at least in part, by others gender, or race, or other attributes of appearance and speech. I will continue to be aware of such and try to reduce such responses and reactions.
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    • Saturday, April 05, 2025 7:00 PM | Hon. Deanne Wilson
      I agree with the first comment sent at 8:19 PM, April4. The time to check out our perceptions and viewpoints is not when we meet arbitration participants for the first time. We should be checking them constantly. If we are truly biased (and there are many tests one can take to evaluate one's perceptions), then we should be looking for bias issues well before we assume the position of arbitrator. But I do think we should be careful before throwing out terms like "bias, "racist," "male chauvinist," etc. Careless name calling usually makes the situation more volatile and difficult to resuscitate...
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    • Saturday, April 05, 2025 7:01 PM | Hon. Deanne Wilson
      I agree with the first comment sent at 8:19 PM, April4. The time to check out our perceptions and viewpoints is not when we meet arbitration participants for the first time. We should be checking them constantly. If we are truly biased (and there are many tests one can take to evaluate one's perceptions), then we should be looking for bias issues well before we assume the position of arbitrator. But I do think we should be careful before throwing out terms like "bias, "racist," "male chauvinist," etc. Careless name calling usually makes the situation more volatile and difficult to resuscitate...
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  • Saturday, April 05, 2025 2:00 PM | Michael Orfield
    I remember when I first went on the bench, the rule that my firm could not appear in front of me for 2 years. The reason was not that I might favor them, but in my quest to be fair I might give the other side an unfair advantage. So 'adjusting' behavior is a loaded question. Behavior is the outside layer. Doing the tough work of reviewing your basic mindset and seeking out bias, if done honestly, will result in a change in behavior. Look at every case... its issues, its litigants, its counsel, its witnesses. Ask yourself if you were on either side, would you want you as the Arbitrator. In your private moments you should be able to be honest with yourself. Can you set aside the bias that you find? The system's health and longevity relies upon your honest evaluation.
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    • Saturday, April 05, 2025 2:23 PM | Anonymous
      I agree with all of the comments above, even though they seemingly contradict each other. We have a duty to be respectful to all counsel who appear before us, and to be respectful, fair and evenhanded in our treatment of the parties. We are human, and therefore sometimes we fall short, but these duties must remain uppermost in our minds.
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    • Saturday, April 05, 2025 2:30 PM | Ed Murphy
      Well said Judge Orfield-the case & the system is at stake.
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    • Saturday, April 05, 2025 5:09 PM | Anonymous
      I side with these comments. They reflect my understanding and approach.
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  • Saturday, April 05, 2025 2:24 PM | Paul Marrow
    It's a given that humans are subject to implicit, i.e., hidden, biases. It has become fashionable to claim that people should be self-aware of their biases. That sounds great. But achieving this goal is a challenge. Afterall, these biases are hidden. Getting at knowledge about one's biases can take a long time and can be very expensive. The market for psychiatric services in 2024 was $92.2 Billion and it is anticipated that by 2034, the market will have grown to $151.62 Billion. (Report, January 2025, Towards Healthcare, available at www.towardshealthcare.com) Ask most anyone if they harbor hidden biases against women, blacks, Jews, etc, and the answer will most likely be something like "Of course I have no such biases." And that's consistent with what hidden biases are all about. Individual efforts at exposing and confronting these biases without guidance from a mental health professional are likely to be unproductive. And not every arbitrator has the time and resources needed for intervention by a mental health professional. Perhaps the best way to proceed is for arbitrators to explore these issues in a group setting composed of only other arbitrators. Corporate America uses sensitivity training. This training involves group efforts to help individuals confront and hopefully resolve biases.
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  • Saturday, April 05, 2025 2:29 PM | Jerry Diekemper
    I will still try to keep in mind any of the implicit biases I may become aware of and take appropriate action to not let them impact my decision-making process.
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  • Saturday, April 05, 2025 2:54 PM | Thomas C Watts
    There is such a constellation of biases that affect our thinking and behavior that to reign them in would be a fool's errand The key is to learn about them and develop a curiosity as to how they affect you and the parties in your matter. the hierachy of beliefs, attitudes and core values are typically the results of the manner in which our implicit (Cognitive) cause them to be formed. Knowing that there are elements about ourselves that are unknown to us ( Johari Window) the best we can do is better.
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    • Saturday, April 05, 2025 3:22 PM | Michael Jordan
      We all do our best to account for many obvious biases such as past professional affiliations, race, religion, gender, etc; but do we think of a possible bias for or against someone who is thin or fat, pretty or ugly, speaks as we do or has an accent. Maybe there clothing is non descriptive or maybe it is extremely vivid to us. The triggers for each of us are so very different. We have to open our minds to everything in the big picture.
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    • Saturday, April 05, 2025 3:23 PM | Bernard Harwood
      Before retiring to return to the private practice of law, I had many years first as a trial judge and then as an appellate judge on a multi-member court, which required me to develop as neutral and objective a mindset as possible, striving to make sure that all arguments and analyses of the partied were fully considered, the issues fully understood and applicable law applied objectively. But I had to recognize that some decisions are influenced by unavoidable individual "biases,"." For example, no matter how conscientiously a judge considers and attempts to apply the factors and guidelines developed by the courts for determining the appropriate size of a punitive damage award, thoughtful and well- informed judges nonetheless often arrive at substantially different amounts. Self examination as to the influences and motivations behind your decisions is always a necessary practice and discipline when undertaking to "sit in judgment" on fellow human beings--and for goodness sake don't let your justifiable negative reaction to the an obnoxiously behaving attorney bleed over into your assessment of the merits of the client's case.
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      • Monday, April 07, 2025 10:13 AM | Daniel Feinstein
        I am unavoidably biased in favor of Judge Harwood as he ruled in my client's favor when I appeared before him in Tuscaloosa as a 3L on a limited practice card in the early 1990s. But even recognizing that unique bias, I think he hits the nail on the head in noting that there often is no objective 'right' answer such as in his punitive damages example. As such, our unique backgrounds will inform how we approach the issues and how we weigh the factors, including such basic things as assessing witness credibility. We need to be aware of our internalized assumptions and mentally run through a quick sanity check to ensure that those assumptions aren't counterproductive to the task at hand.
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  • Saturday, April 05, 2025 4:31 PM | Perry L Taylor
    I believe "implicit bias" exists and can effect our judgement. I also believe it impossible to quantify in any objective way. They are also a very complex set of, frequently, intersecting biases and even self canceling biases.
    Therefore, I think is impossible to "adjust" for them. I would prefer to suggest that we all critically examine our analytical process and the resulting conclusions to identify any impact biases, implicit or otherwise, may have had and insure that it was appropriate and warranted. Not all bias filters are wrong.
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    • Saturday, April 05, 2025 11:00 PM | The Hon Neil Brown KC (Australia)
      We all have to be careful to make sure we have no inherent bias. I put decisions aside for a while and then read them with a fresh mind. This seems to help , although there is no substitute for continually reminding oneself to come to every issue with an open mind.
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  • Sunday, April 06, 2025 1:57 AM | Dustin Hecker
    All arbitrators, of all races, colors, and creeds, as the saying used to go, should strive to be objective and to be aware of any issue, including "bias", that might affect their decisions. Unconscious biases, by definition, seem rather difficult to be conscious of. So I question what one can do about them, assuming they truly exist and motivate behavior in any material way.
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  • Sunday, April 06, 2025 10:11 AM | George M. Lobman
    We all have an opinion of who we see and what they stand for without one word of communications. The first impression sometimes clouds the room and must be fought to gain an understanding of who is in front of you and are their words and actions helpful in eliminating the initial feelings or more of a confirmation of your first glance. Every effort at being fair and reasonable on both parties must be the first goal of all Arbitrators.
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  • Sunday, April 06, 2025 10:25 AM | Sheila Carpenter
    I appreciate all these thoughtful comments. While carefully listening to everyone involved in the arbitration, we should be aware of any internal voices suggesting that someone should be deemed less worthy of attention. Weighing the fairness and validity of these voices is one of the most important things we do. Another is our gut reaction to the invitation to be arbitrator. If one party’s position seems nonsensical, it may be because it likely is, or it may be because our experiences and upbringing lead us in that direction. This is the point at which acknowledging possible bias is most likely to affect behavior.
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  • Sunday, April 06, 2025 10:56 AM | Michael Lampert
    Watch out for implicit bias based on pronunciation: From Sunday's Times (London) -
    Lecturers at Edinburgh University have become the first in the UK to undertake accent bias training to counteract anti-Scottish bullying at the institution.

    Campaigners have claimed there is an entrenched culture where students, particularly from Scottish and working class backgrounds, are mocked and mimicked — making them reluctant to speak out and participate in tutorials.
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  • Sunday, April 06, 2025 11:42 AM | Gary D Quesada
    I don't think it's very credible for any person to declare he/she is without bias. Perhaps there are those so pure of heart no bias invades their mind, but I doubt it. Because we are all very likely carrying implicit bases, the Arbitrator is duty-bound to employ methodologies that mitigate bias. These are the same methodologies that are designed to render the most just decisions in conformance with the Arbitrator's overall duty. It is not, to me, a matter of "adjusting behavior" for a particular case as it is using an appropriate analytical approach regardless of the parties. The PROCESS should be governed by neutral principles with as much fidelity as possible, just in case the Arbitrator is not. Again, that applies to all cases.
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  • Sunday, April 06, 2025 11:56 AM | Gary D Quesada
    Just to add some humor to this discussion, I think my fellow construction arbitrators would agree that the prevalent, entenched stereotypes regarding the personalities of architects, engineers, contractors, developers and homeowners are FAR more intrusive and likely to trigger bias than any race, religion, age or gender factor could ever be.
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    • Sunday, April 06, 2025 12:41 PM | Andrew Cohn
      Gary's comment most closely speaks to my concept of what "implicit bias" really is. To me, bias is not only focused on factors like race, gender, or ethnicity. Rather, it includes any pre-determined stereotype, which can result in pre-judging the quality or persuasiveness of a party's position in a case. Just keeping an open mind, regardless of what you may think about counsel or a part because of your experience, best addresses the right approach. Isn't that what neutrality really is in the first place?
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  • Sunday, April 06, 2025 3:29 PM | James R. Madison
    I suggest it is not a question of adjusting behavior. Rather it is a a question of being alert to the potential for implicit bias, i.e., bias of which the arbitrator is not conscious. Being willing to assume should trigger an alarm. We had 2023 case in California in which an award was vacated for arbitrator bias. The arbitrator assumed that a party who first language was Asian was "faking it" in an effort to curry favor with the arbitrator by testifying through an interpreter despite a lengthy history of engaging in business in the US and instances of interpreting for others. As the court noted, the arbitrator had not inquired into the circumstances which might well have justified the party's conduct. E.g., what language was used in he business transactions? What were the circumstances in which she had interpreted? In short, never assume; ask. because your assumption may not be justified.
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  • Sunday, April 06, 2025 6:51 PM | Karen Mills
    I would allow a short, one week or so, continuance, making it clear it should not be extended. After all, the Parties need to be permitted to present their case so we need to be flexible. If the other party then needed more time, we could allow that as well. Nothing, other than a little time, is lost in allowing extensions, and it is done all the time for so many reasons.
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  • Monday, April 07, 2025 1:23 PM | John M Delehanty
    Although this may be a bit off topic, I think it is important to note that implicit bias can work both ways. I have been a neutral in several cases where one or more participants are uncomfortable with an older white male, namely me. They may not say so explicitly, but it seems to be clear from their demeanor. I try very hard to find ways to relate so that they will be comfortable with me, but as noted by one of the other respondents, I do not believe that bias is solely the province of the neutrals.
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  • Monday, April 07, 2025 4:48 PM | Sandy Karlan
    The essence of implicit bias is our unexamined belief systems or beliefs. We all have them although we don't acknowledge them as beliefs but rather as "just the way things are". For example, you can have beliefs about certain types of people - tall people, dark people, short people, tatooed people, etc. Things that we learned from our families, our families' culture, our school, and our experience of one or two events that verify our beliefs.
    As a former sitting trial judge, and as a currently sitting arbitrator, I regularly need to check my immediate reactions to the parties that appear before me. Do I have an experience that tells me that some people deserve what happens because of their background or lack of expertise or some other negative thought?
    I need to check all of those beliefs at the "door" because they are just beliefs" and will interfere with my freely unbiased approach to the parties. I can have my beliefs - I just need to acknowledge that they are only beliefs and let them go.
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  • Saturday, April 12, 2025 4:37 PM | Denise M Hammond
    Back up folks - we are all a product of our lifetime of experiences. And our experiences are impacted by our height, weight, eye color, skin color, language, education level and many other factors, some of which we have no control over. Those experiences invariably impact our perceptions. Our job as neutrals, is not to ignore these biases, but to recognize when and how we might favor or oppose one position, advocate or party because of them. We have been entrusted with the role of arbitrator because the parties, counsel or AAA believe we have the maturity, judgment and discernment to recognize these biases, but to ultimately rely on the factual evidence and the law to render a just decision.
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  • Saturday, April 12, 2025 5:42 PM | Anonymous
    1) Ethically, arbitrators are bound by a duty of impartiality—not just in appearance, but in actual behavior and internal deliberation. This includes a proactive responsibility to identify, mitigate, and manage implicit bias, even when it’s subconscious.

    2) So yes, arbitrators should adjust their behavior significantly, bycultivating self-awareness,
    applying structured reasoning (e.g., written checklists, standard criteria),
    ensuring equal treatment of parties during hearings,
    and, actively guarding against reliance on stereotypes.
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  • Saturday, April 19, 2025 7:20 AM | Anonymous
    Implicit biases are a real thing. Sometimes we do not recognize them in ourselves but see them in others. International Bar Association provides excellent training for legal professionals on unconscious biases. It's a few sessions of watching some cool animation and then taking a multiple choice test to see where we stand. As arbitrator, I keep my focus laser sharp on the contract and the rules and try to focus out of anything else. It gets better with experience and practice :)
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