emotion

It’s About the Brain: Jeremy Lack on the Neuroscience of Dispute Resolution

/ CPR Staff / Leave a comment

By Alice Albl

“You hear in movies ‘follow the money’; in my world I try to ‘follow the oxygen and glucose,’” neutral Jeremy Lack told an online group as a preface to his theory of mediation and resolution.

Lack presented his research at the latest installment of the Conversations in Conflict series hosted by the New York Law School’s Alternative Dispute Resolution Skills Program on Aug. 12.

Lack is a veteran practitioner, frequent lecturer, and member of three national bars along with being listed on several neutral panels, including the CPR Institute’s Panels of Distinguished Neutrals. Lack joked that he may be the world’s only quadri-national mediator, being a citizen of Switzerland, the United Kingdom, the United States, and Israel, which may prevent him from being appointed if nationality is a consideration in the selection of neutrals.

Research being carried out at the Swiss Center for Affective Sciences at the University of Geneva forms the basis for Lack’s TRI-O/S model, whereby the brain operates with faster and unconscious, emotional and social operating systems, which precede a slower, cognitive and rational operating system. 

These emotional and social networks serve as rapid triage systems, operating in milliseconds, to influence and shape conscious thinking and decision-making that will take place hundreds of milliseconds later. They are coordinated to minimize wasteful consumption of the brain’s limited resources: glucose and oxygen.

The TRI-O/S model looks at human behavior at three levels, or Operating Systems. “O/S 1” corresponds to emotional patterns of thinking, such as a flare of anger at an unreasonable offer or a rush of excitement when a resolution finally becomes apparent.

“O/S 2” are social patterns of thinking that explain such tendencies as biases, the desire for a comfortable sense of status, and a sense of belonging.

“O/S 3” are rational patterns of conscious thought and decision-making, but that can occur at different levels, such as reflexive (more frugal) thought processes or reflective (more wasteful) thought processes.  When we are tired or our resources are depleted by emotional and social considerations, the brain will be limited to rigid, reflexive pathways.

According to Lack, mediation participants tend to believe they are working mostly rationally, with O/S 3. Yet it is inevitable that the faster O/S’s 1&2 precede and influence what type of rational thinking is possible at the O/S 3 level. Emotions and social influences are always present, even if we are not aware of them.

In the fractional moments before any given cognitive decision is made, all three O/Ss will be activated, but O/S 1 and 2 will precede O/S 3, and influence which neural correlates will receive more oxygen and glucose–for example to avoid danger or obtain a reward. In terms of the limited resources consumed by these operating systems, this means that O/S 3 will always be last in line — granted only leftovers to cobble together into a rational thought.  We lack the ability to distinguish when we are thinking reflexively or reflectively.

Initial subjective stimuli will always affect mental activity and objectivity, and the capacity to think and take optimal decisions. Feeling stressed or treated unfairly will hinder cognitive abilities.  This theory supports the maxim that the more tired or angry a person is, the less rational they are likely to be.  The same is true for social influences, e.g., feeling excluded or treated unfairly.

Lack says he believes that other such maxims can be revisited using the TRI-O/S theory. Initial emotional stimuli (such as fear or reward) and social stimuli (such as feeling “in-group” as opposed to “out-of-group”) can activate different parts of the brain, leading to different patterns of downstream rational thought.

The amygdala, or anterior insula, may consume more oxygen and glucose in some situations than others, limiting the way the prefrontal cortex can be activated. The brain prefers to follow established networks of thinking that are partly genetically and partly environmentally shaped, which Lack calls “mental heuristics.”

A mental heuristic of the socially-oriented O/S 2 type that labels others as being “in-group” (e.g., a friend) switches on empathy circuits that are unavailable to people who have been labeled as “out-group” (e.g., strangers).  This triggers different forms of pro-social and anti-social patterns of behavior that are innate to all human beings. 

Fortunately, these networks are plastic and malleable, and skilled mediators can activate pro-social heuristics and weaken anti-social ones. This explains another piece of common knowledge — that humans are highly sensitive to the feelings of friends or loved ones, but can be equally cold and insensitive when it comes to the feelings of strangers or “others.”

The advantages of a shared meal with the parties the night before a mediation or conducting talks around a round, as opposed to a rectangular, table may seem slight, but they can trigger powerful “in-group” vs. “out-of-group” unconscious heuristics, which will greatly influence cognitive and rational capacities.

The greater ability to empathize generated by these small acts of behavioral priming can help stimulate cooperative behavior and weaken competitive behavior in ways that the O/S 3 is simply not aware of, greatly influencing the quality of rational thought, and the brain’s ability to be creative in finding better solutions for settlement.

As the online event drew to a close, an audience member asked whether the TRI-O/S model may do away with traditional conceptions of law and justice, instead tethering everything to biology and emotional or social instincts. Lack’s response was a shrug, noting, “We are still in the dark ages of understanding neurosciences and what is really happening in the human brain.  What I can say for the moment is that justice is not devoid of emotion or social influences.” He added, “The rule of law invokes a lot more subjective variables than we realize.”

But these variables may be understood and skillfully used by a mediator willing to apply neuroscientific approaches to trigger innate heuristics that can optimize group behavior and the quality and depth of thinking, focusing on possible mutual “rewards” as opposed to “losses.”

Lack encourages mediators to participate in and support research in this field and use its teachings to broaden their tools of practice.  He concluded by citing a recent article to be published in the September 2020 edition of Cortex magazine, which apparently demonstrates for the first time, with fMRI data in support, that mediation really does stimulate different thought processes in the brain as compared to negotiation, leading to higher settlement rates and higher satisfaction ratings. 

While the research was done on romantic couples, its findings should equally apply to commercial disputants. We are all using the same hardware. It is the operating systems we are running on them and how they interact with one-another that mediators can influence.

* * *

For more on Jeremy Lack’s theory of ADR, see his 2012 publication with international mediator François Bogacz, “The Neurophysiology of ADR and Process Design: A New Approach to Conflict Prevention and Resolution?”, 34 Cardozo J. of Conflict Resolution [Vol. 14:33] 33-80 (2012) (available at https://bit.ly/3iKzMhV). For the new Cortex article describing the benefits of mediation over negotiation, see https://bit.ly/2YmfSlB. Recordings of NYLS’s Conversations in Conflict Resolution series, including Lack’s presentation, are available at https://bit.ly/2Fg5Mf9.

* * *

The author, a CPR Institute Fall 2020 intern, is a second-year student at Brooklyn Law School in New York. This article was updated with clarifications and further explanation by Jeremy Lack on Aug. 21.

[END]

Identifying the Blind Spots: Self Reflection in the Field of International Arbitration

/ CPR Staff / Leave a comment

Sophie Nappert, selected lecturer at the 2018 Proskauer International Arbitration Lecture, discusses the tumultuous perception of international arbitration and calls for the industry to look inward

By Sara Higgins

During the 2018 Proskauer International Arbitration Lecture, renowned international arbitrator Sophie Nappert took some of the industry’s leading lawyers to task. Her address, cheekily titled “Disruption Is the New Black”, examined what she identified as “blind spots” in the field of international arbitration (IA). Branding disruptive innovation as the poster child for progress, Nappert opined that it will inevitably impact the legal field, during these times of tectonic change and revolution, in a way that forays the very heart of international arbitration – a self-governed justice system that derives its jurisdiction from party consent.

Nappert opened with the current IA landscape. She painted a rather gloomy picture, revealing the sobering fact that in-house counsel consider external lawyers to be the primary obstacle to achieving collaborative, adjudicative and non-adjudicative dispute resolution.

Nappert also pointed to growing skepticism of the arbitral process around the world. “When the Chief Justice of the UK Supreme Court, in one of the most arbitration-friendly jurisdictions on the planet, bemoans the negative influence of arbitration on the development of English law; when the EU, a behemoth not known for its nimble footing, performs a 180-degree turn in less than a year from its initial, resolutely pro-ISDS stance towards pushing forward a court proposal complete with appellate jurisdiction on fact and law”, it might be time for some self-reflection. Nappert asked us to consider, “whether, heady on its nearly unbounded autonomy, on the vast deference granted to it by state courts and legislation and assisted by the unparalleled ease of enforcement of its decisions afforded by the New York Convention (NYC), the current model of IA has overreached itself at the expense of quality of procedure and output.”

In pondering her own question, Nappert praised the unprecedented expansion of IA into areas once considered non-arbitrable but cautioned that “It has made us oblivious to some substantial blind spots, focused as we are on driving the IA chariot forward towards the next development.” She identified three such blind spots, though undoubtedly there are others: diversity, corruption and artificial intelligence.

Diverse panels increase institutional legitimacy

“Current voices in scholarship posit that the above disruptive phenomena present an important opportunity to address shortcomings, and notably as regards the diversity in composition of panels, as a vector towards a better and more legitimate decision-making in investment and commercial arbitration,” Nappert said.

She shared a number of statistics demonstrating diversity in the field – or rather lack thereof. “At ICSID, 19% of the 195 appointments made in 2017 to ICSID tribunals or ad hoc committees were women. This can be compared with 2016, where 13% of appointees were female. Of the 37 appointments of women in 2017, there were 18 different individuals who were nationals of a dozen different states, thus reflecting some regional diversity.” “The SCC reports 254 appointments for 2017, of which 18% were female. When the appointment was made directly by the SCC, 37% of the appointees were female. When made by the parties – 8%; when made by co-arbitrators – 0%. For regional diversity, 231 of the 254 appointments were from Europe, followed by Australasia and North America with 5 each, I from South America, 3 from Asia and 2 from Africa.”

The 2018 Queen Mary/White & Case International Arbitration Survey showed that respondents were generally ambivalent as to whether there is a causal connection between a diverse panel of arbitrators and the quality of that panel’s decision-making. Nappert argued that this might be the wrong query to make altogether. In her opinion, “At a time where the legitimacy of IA is in crisis, in the eyes of others a more diverse tribunal is a more representative, and thus more legitimate, tribunal; and from the prism of enhanced legitimacy the desirability for diversity in tribunal composition is undebatable.”  She stressed that the quest for more diversity ought not to be made at the expense of quality and competence.

How can IA promote diversity?

Accepting that diversity among panelists is the goal, Nappert believes this issue should be championed at the institutional level. “Institutions have a powerful statement to make by enshrining diversity in their rules as a factor for consideration in the nomination and appointment of arbitrators, alongside and to the same extent as other credentials,” she stated. Chastising the “lip-service” treatment currently afforded diversity, Nappert called for institutional rules to anchor this value in the field. She suggested that institutional rules should consider enshrining diversity as a factor in considering appointment, to the same extent as nationality is currently accepted as such a factor.

Allegations of corruption

Nappert next considered IA’s approach to allegations of corruption in the field, calling for greater self-reflection in the wake of Belokon v Kyrgyzstan, where the Paris Court of Appeal famously annulled an Award as infringing public policy, after reconsidering the case on its merits and finding  sufficient evidence of money laundering. She warned, “That a state court in a country famous for its respect for, and deference to, arbitration tribunals should consider it necessary to reopen the merits of a matter should be a cause for concern, and immediate action on our part, lest we are failing to put our house in order in the eyes of others.” She added that between the ICCA, the IBA, and the ILA, there is no lack of fora to host an open discussion about corruption in the field. Nappert seemed to imply that in failing to have such a discussion with the goal of establishing best practices, IA is missing an opportunity to improve public perception and strengthen its legitimacy.

The rise of artificial intelligence

The final blind spot that Nappert addressed in her lecture was artificial intelligence. Arbitral outcomes can be computed using a series of algorithms that, to whatever degree of certainty, offer parties a predictable outcome that might be seen as mitigating some of the risks of dispute resolution. “Scientists and suppliers of algorithms,” observed Nappert, “are currently warning litigation and arbitration users that human decision-making as we exercise it on a daily basis is no better than a lottery. In addition to being costly, time-consuming, and resource-depleting, it is unpredictable and inevitably subject to bias.”

Though not claiming to be a computer scientist, Nappert spoke on the importance that IA query “how algorithms come to their decisions; where the boundary lies between the machine’s capacity for predictive and prescriptive analysis and the human decision-making mind; [and] the public policy implications of robot-assisted justice and how these awards are reviewed by state courts, notably under Article V of the New York Convention.”

She postured that the introduction of AI into IA could create a dispute settlement system tendering predictability and speed for users, and even the ability to suggest commercial solutions to their disputes to prevent reoccurrence — a tool she ventures would speak powerfully to users.

Preserving the “human element”

If this is the inevitable future of dispute resolution, how can IA fight to stay not only relevant, but valuable? To no one’s surprise, IA’s strongest asset is its fundamental value – the notion that parties have a stake in selecting the decision-makers who will ultimately decide their fate. Though an algorithm could eliminate human unpredictability, the ability to select the decision makers in one’s own dispute is what makes arbitration appealing at a basic – and yes, emotional – level.

Nappert discussed briefly the role of human emotion in arbitration and seemed to defend it as an inherent, underlying thread of dispute resolution. She called for “arbitral institutions proactively to dialogue with AI scientists and providers to ascertain in an ethical manner, how lawyers are made to understand the way algorithms work, how exactly machine speak translates into the human language, and how we can carry on selling the human values underpinning decision making, so that we have an economically competitive and intelligible answer to give to scientists, suppliers of algorithms, and users.”

IA must put its house in order

Nappert ceded that these blind spots – diversity, allegations of corruption and artificial intelligence – are not the only ones IA possesses. But, while they need to be addressed as soon as possible, reacting to these blind spots is no longer enough, in Nappert’s opinion. “In the face of rapidly-paced and seismic disruption, we need to be proactive lest we become the Kodak and Blockbusters of dispute resolution,” she cautioned.

The IA community is largely governed by its own practitioners serving on boards and steering committees, including in arbitral institutions. This close relationship should be taken advantage of to show the rest of the legal community, and the world at large, that IA can keep its own house in order. Nappert concluded, “If we show that this closeness can deliver the benefit of building consensus on best practice and policing our own terrain in a forward-looking manner, we will make strides towards the continued legitimacy and relevance of IA in the face of disruption.”

 

Sophie Nappert is a dual-qualified lawyer in Canada and the UK. She is an arbitrator in independent practice based in London, specializing in international disputes. Sophie is ranked in Global Arbitration Review’s Top 30 List of Female Arbitrators Worldwide and is commended as a “leading light” in the field by Who’s Who Legal. She won the 2016 Global Arbitration Review Award for Best Speech for her address at the EFILA Annual Lecture, International Investment Arbitration: Escaping from Freedom? The Dilemma of an Improved ISDS. http://www.3vb.com/our-people/arbitrators-associate-members/sophie-nappert

Sara Higgins is a legal intern at CPR and a third-year law student at Northeastern University School of Law. Sara recently completed the New York State Bar Association Commercial Arbitration Training for Arbitrators and Counsel and previously worked for the United States Attorney’s Office in Boston, Massachusetts.