One of the most exciting parts of my studies at St Andrews was discovering how the brain can change.

Neuroplasticity
50 years ago, the idea that brain anatomy could change at all was unthinkable. It
was widely accepted that while our brains are malleable when we’re young, they
gradually harden into a fixed structure by the time we’re adults – like clay in a kiln.
It was also believed that we are born with a fixed number of neurons, and once
they’re lost through damage or decay, they can never be replaced. Hence, “you can’t teach an old dog new tricks”.

Thanks to modern neuroscience, we now know that the adult brain changes continuously throughout our lifetime – in response to what we experience and what we do. When we practice a skill, or repeat a thought, connections between neurons get stronger and specific brain regions get bigger through neurogenesis – the growth of new brain cells – or by the formation of new pathways.

The net effect of this neuroplasticity is that we get better at the activities and
thoughts we rehearse. So instead of hardening clay, the brain is more like playdough.

Let me give you an example.

In the Burmese archipelago, and off the West Coast of Thailand, nomadic tribes
called Sea Gypsies spend most of their lives at sea. They swim before they can
walk, and they live on clams and sea cucumbers, which they have to dive very deep to find. One tribe can dive over 75 feet without equipment – which, for reference, is about 12 Sean Connerys. What makes Sea Gypsies unique for our purposes is that they can see clearly at these great depths – without goggles.

Most of us can’t do this because when sunlight is refracted underwater, our visual
system can’t interpret the light that hits our retinae. But the Sea Gypsies have
learned to control the size of their pupils – shrinking them by 22% in order to see
underwater. This is remarkable. We always thought that the way our pupils adjust to the light – getting larger in the dark and underwater – was an unconscious and
automatic reflex.

In fact, the Swedish researcher who studied the Sea Gypsies taught this underwater ability to Swedish children – proving that what was once thought to be a reflex is in fact something our brain can learn to control.

International arbitration culture

This adaptability highlights how our brains change as a result of the culture we grow up in. International arbitration has its own distinctive culture. There are signature activities we learn and we follow:

• the directions we capture in procedural orders;
• the system we use to label exhibits;
• the way we address witnesses;
• even our diet during hearings – mostly biscuit-heavy.

But are these signature activities truly optimised to suit the way our brains work?
In this talk, we’re going to look at instances of mis-match between the way our brains function and certain elements of international arbitration culture. We’ll do this by exploring 3 features of human psychology linking them to arbitration.

• At the individual level, the limits of human cognition.
• At the interpersonal level, our inherent sociability.
• At the environmental level, the impact of external conditions on our thinking.

1. Our brains have limits.

So first: while it isn’t entirely comfortable to admit, our brains have limits. Millions of pieces of information hit our sensory systems every second – but we can only process and understand so much.

Let’s look at some basic numbers.

Memory and attention

The capacity of our short-term memory – that is, the ability to hold new information in our head until it becomes long-term knowledge – is about 7 bits of information, give or take 2.

Our ability to focus attention? Also not great. The average attention span is
anywhere between 2 seconds to around 48 minutes.

We can improve our memory and our attention a bit – for example, with certain types of meditation – but they both get worse when we’re stressed or sleep-deprived. Not great news for most of us in this room.

But what actually happens when we reach our cognitive capacity? Our decision-making, our memory – even our ability to detect information at all – begins to falter.

Recency bias

For example, when we are given lots of information over a period of time – like a
tribunal over the course of a proceeding – we remember and we are influenced by
the most recent bits much more than those sandwiched in the middle.

This is Recency Bias. One reason why Counsel (and arbitrators) love a post-hearing
brief.

Vividness effect

Next, the Vividness Effect. Compared to bland or abstract facts, information that is emotionally striking, rich in sensory detail, is more likely to capture our attention, be remembered and influence our decisions.

This explains why I can still remember where I was the first time I heard an advocate comparing shares in a company to a dead cat.

Confirmation bias

Then, Confirmation Bias, where we selectively search for evidence that supports our view and we ignore, forget, explain away or otherwise downgrade evidence that goes against it.

According to a large survey in 2012, 88% of arbitrators – as a matter of practice – or on at least one previous occasion – form a preliminary view of the case by the time they walk into the merits hearing.

In view of the research on Confirmation Bias – how our perception, evaluation and
recollection of evidence changes once we form an initial hypothesis – this relatively common practice deserves careful consideration.

Overconfidence

And finally, Overconfidence.

In an interview in 2015, the late, great Daniel Kahneman said, if he had a magic
wand, this was the one bias he would eradicate. Ironically, few people appreciate
that there are actually 3 distinct types of overconfidence.

• Overestimation: believing you are better than you actually are at a task or a
  skill. Like planning 30 minutes for something that takes you 3 hours.
• Overplacement: thinking you’re better than others.
• Overprecision: excessive certainty that your predictions, your calculations of
  risk, are accurate.

This last variant of overconfidence is especially dangerous – because it stops us
questioning our assumptions, challenging our initial conclusions, and remaining open to new evidence – ultimately undermining the fairness and accuracy of our decisions.

Why might we need to worry about this in arbitration?

Think about your long-suffering, document-deluged arbitrator. By the time they reachthe hearing, they are supposed to have read, remembered, and understood thousands of pages of submissions, evidence, expert reports – not even counting the exhibits. They might be jet-lagged. They might be stressed. Their memory is almost certainly full trying to remember a new cast of characters.

If you were to design the perfect environment for cognitive overload, this would be it: an environment where the sheer volume of information forces us to rely on mental shortcuts to keep up.

So, my first point – in case you have forgotten – is that our brains have a bandwidth limit. When we exceed our data limits – as we so often can – our brains take shortcuts, and these shortcuts can create flaws in our decisions.

2. We are ‘group-y’

We are inherently ‘group-y’. One of the most distinctive and significant traits our
species has evolved is the tendency – automatically and immediately – to form
groups with other people.

The 1968 cult classic, Planet of the Apes, offers a fascinating case study of this
instinctive habit. In the film, there are 4 species of ape: humans, chimps, gorillas and orangutans. On the first day of filming, actors donned their designated ape
costumes. Later that day, during lunch in the cafeteria, the director noticed something strange. Despite being strangers and still in their costumes, the actors
instinctively grouped together at tables according to their ape species. Gorillas sat with gorillas, chimps sat with chimps – perfect segregation.

What about arbitration?

If I didn’t know about overprecision, I’d put money on international arbitration being one the group-iest branches of law in the world. So far so group-y. So what?

In-group bias

Well, after we have mentally divided the world into different groups – those to which we belong, and ‘the others’ – we think, behave and feel differently towards them.

One important factor is that we like people like us. We prefer to be around people we share some important personal characteristic with, where we share an affinity. Often this is some visually obvious characteristic – gender, age, nationality – but it could be anything: same law firm, shared love of a particular sport, just the mutual belief that deep-frying a Mars bar is a perfectly acceptable dinner choice.

If we reflect on this, it’s something we experience all the time. At events like this, it feels easier – we are more relaxed – speaking to people we feel similar to. Conversely, it feels a bit harder – and we shy away – from speaking to people we
feel different from.

The Usual Suspects Effect

This impacts many moments in an individual’s career. One specific instance is the
selection of arbitrators.

Last year I published the results of a research project designed to map
systematically for the first time, how parties – or more accurately, how Counsel – go about choosing an arbitrator. Spoiler: there is no system. This critical decision-making process is largely ad hoc.

But there were some commonalities. One was that, almost universally, the first
method for coming up with potential candidates was what I call the ‘mental rolodex approach’ – where you sit back in the chair and think of names that pop into your head.

What’s wrong with this approach? Well, if you take Affinity Bias and add Recency
Bias, what happens is Counsel coming up with the names of people they spoke to at last week’s conference, or who they saw and liked on a recent panel.

Given that arbitration lawyers are themselves from a relatively un-diverse range of backgrounds, this inevitably leads to a relatively un-diverse pool of arbitrators – hence, the Usual Suspects Effect.

To wrap up my second point: we have natural instincts that shape how we connect
with others. These instincts have been wired into us for survival – so they are very
powerful. But they may not help us create the best outcomes in arbitration.

Breaking free from them requires conscious, deliberate effort – good intentions aren’t enough. So, my challenge for you today is simple: notice who you’re naturally drawn to – and then, make the effort to connect with someone else, as well.

3. The impact of external conditions

Third, and finally, our brains operate very differently under different conditions.

Deadlines and caffeine

Many of us have no doubt experienced firsthand that nothing motivates quite like a deadline. Counter-intuitively, research shows that the more time we have, the less likely we are to do something. So, keep that in mind the next time you’re asking someone to complete a task

Caffeine works wonders on our energy and our focus because it blocks adenosine
receptors – the neurochemical that makes us feel sleepy. On the topic of coffee – one
image I cannot forget is from a NASA study looking at the effects of various
substances on spiders’ ability to weave their webs…

The foreign language effect

One condition of particular interest in international arbitration is language.

Nelson Mandela said “if you talk to a man in a language he understands, that goes to his head. If you talk to him in his language, that goes to his heart”.

Science may think this an exaggeration but he had a point. What is clear is that we feel emotions much more strongly in our mother tongue than when we hear or read the same thing in a foreign language. This is most likely because there is a much stronger social context surrounding our learning of our native language.

One study from the fascinating field of neurolinguistics, asked German participants who could also speak English as a foreign language to read exciting passages from Harry Potter in both languages. Brain imaging showed that the amygdala – the part of the brain that processes emotions – became activated only when participants read the exciting passages in German but not in English.

As a result of this difference in emotional processing, language also influences our judgments and our decisions. When people assess something risky in their mother tongue, they over-rate the benefits and under-quantify the risks.

We also respond differently to moral decisions. You may be familiar with the trolley problem:

‘A train is very quickly approaching 5 people. It has a problem with its brakes
and cannot stop. Those 5 people will die if the train continues on its path.
There is a way for you to divert the train, but that would result in a man dying.’

In a famous study by a team in Barcelona, for those people who read this rather
unpleasant dilemma in their first language (Castilian Spanish or Catalan), only 17%
sacrifice the 1 man for the 5. But when they face the same dilemma in their second language (English), that figure increased to 40%.

This finding has been replicated several times in several languages – so it isn’t the
case that English makes us coldly rational.

In international arbitration, where judgments and decisions are made by many
people across multiple languages, this is a fascinating factor that cannot be
overlooked.

So point 3 is that different external conditions change the way we think and behave – in arbitration as in life.

Conclusion

We share 98% of our DNA – our genetic code – with chimpanzees. And thanks to the Human Genome Project, we know exactly which genes differ between us. One of them is the gene that controls neuron production. Neurons are created through cell division – 1 becomes 2, 2 becomes 4 etc – and this continues longer in us than in chimps, so we end up with about 100 billion neurons; whereas chimps have brains 1/3 the size.

Because each single brain cell can be connected to thousands of other cells, we
have an exponentially greater number of neural connections. Think – 10 followed by at least a million zeros. This is why the brain is often described as the most complex object in the known universe.

It’s also why we are capable of massive and profound, structural change. So it’s time to learn some new tricks. To think about the typical systems and processes we use in arbitration – and ask ourselves, do they truly support the way we think and make decisions?

With intelligent adaptations, guided by psychological science and research, we can
shape an international arbitration culture that is designed to work with our brains, rather than against them. And that is my case for change.