Arbitrators, adjudicators, even judges, all have unconscious bias. You can’t change that – but you can make sure that you don’t help them to direct it against you
Let me ask you a question. How is your reputation doing? And the firm you work for, how is its reputation doing? And that part of commerce in which you and your firm sit, how is its reputation doing?
Why ask? Not long ago I asked a fellow adjudicator why he decided a particular dispute in favour of the subcontractor instead of the main contractor. It was an unfair question since by now he had sunk two pints of best bitter, a good measure of a bottle of claret and had moved on to brandy. “Oh come on, Bingham,” he said. “You know full well that these big main contractors are all utter bastards … In any case the chief QS in that outfit is as near to a crook as Reggie Kray.”
Blimey! That’s a good example of stereotyping, a really good example of the effects of carrying a rotten reputation and one hell of a good example of the “thinking” that may go into an adjudicator’s or arbitrator’s decision. Unwitting bias brought on by a perceived bad reputation is devastating. Devastating, too, to be stereotyped.
Unwitting bias is not the preserve of the construction industry’s dispute adjudicators or arbitrators. Even judges are not immune. In a recent case the judge delivered a trenchant judgment on the meaning of certain words and phrases in a document, adding: ”I reach this conclusion without regret.” Dear me, that just won’t do at all. He had fallen into the trap of considering the merits of the underlying dispute when considering the meaning of the contract. This was remedied by the more senior judges in the House of Lords, who said: “The merits of the underlying dispute were entirely irrelevant.”
So the judge, the arbitrator, the adjudicator are to be impartial and objective, standing aloof, detached. But this is impossible tosh! Prick a judge and he bleeds. And the further you come down the hierarchical chain of decision makers, the less practised you’ll find those decision makers are at being objective.
No, this is not like running up against a posse of neo-Nazi skinheads. What this is, is subtle, insidious and unconscious prejudice. If you have a rotten reputation, if you lose your reputation in the middle of the adjudication, or if you are simply stereotyped by the decision-maker, you are in trouble – irrespective of the rights and wrongs of your case. The tribunal will not even realise that it is being unfair to you.
Tell your adjudicator a lie and they will have to work hard not to find against your client, your firm, you, this time and the next and the next
What’s to be done about unwitting bias? Mahzarin Banaji doesn’t fit anyone’s idea of a racist. She is a psychology professor at Yale University and a member of an ethnic minority – she has felt first hand the sting of discrimination. Yet when she took one of her own tests of unconscious bias, she says: “I showed very strong prejudices. It was a truly disconcerting experience.” And an illuminating one.
As a formal decision maker, the first step is to recognise that prejudices are ordinary. It’s the way we are, the way we have developed. Some gentle cross-examination of my stereotyping companion got him laughing – at himself. He had had one bad experience with a large main contractor 15 years before and had unwittingly developed a prejudice about “that sort of outfit”. He admitted his thinking was ridiculous, but also that he had never examined his prejudices before.
As for your reputation, whether personal or that of your firm, that’s for you to think about. But if you haven’t yet twigged that bad PR will haunt you, and can be a dispute decider, think on. Treat suppliers badly and you will tarnish your reputation; the customers soon hear about the bully. So too will the adjudicators, arbitrators and judges. And if you’re foolish enough to try pulling a fast one on an adjudicator – a fib, a try-on – you can be sure that the adjudicator will tell all their fellow adjudicators. They might let you off if you are just wrong headed or incompetent – their pals will only hear about how pathetic you are. But tell your adjudicator a lie and they will have to work hard not to find against your client, your firm, you, this time and the next and the next – even though they can’t even remember the fib you told any more. Unconscious unwitting bias takes over.
Tricky, isn’t it?
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on firstname.lastname@example.org.