Western Canada Commercial Arbitration Society

Christina Tang

On September 22, 2021, the Western Canada Commercial Arbitration Society hosted a virtual program as part of the second annual CanArbWeek.

Opening Presentation: Biases in Adjudication in the Age of Zoom

The program began with a riveting presentation by Professor Craig E. Jones QC on how subconscious heuristics can – and do – affect adjudicators’ decision-making.

Professor Jones prefaced his discussion with a quote from O.W. Holmes Jr.: “the prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” Jones explained that this was one of his favourite quotes, because it dispels the myth that law is purely a product of logical processes. Instead, research shows that there are many invisible biases which can determine the outcome of a case.

Jones took the audience through a series of fascinating findings from heuristics research. For example, a study of the Israeli parole court revealed that judges were more likely to grant parole if the prisoner appeared earlier in the day, rather than later. More specifically, the first prisoner of the day had around a 65% chance of a successful application – but by the end of the day, the chances drop to almost zero. Jones explained this pattern was driven by decision fatigue. Put simply, making decisions exhausts the human brain. To conserve energy, our brains will “take the path of least resistance” in every judgement – which often means preserving the status quo. Hence, as the day goes on for parole judges, they will increasingly err on the side of caution by denying requests for parole. Jones explained that that most striking part about this study was the fact that nobody – not the judges, counsel, nor prisoners – noticed the significant effects of decision fatigue on judicial decision-making.

Jones also talked about the psychology behind anchoring and adjustments. Anchoring is a mental shortcut that our brain takes to reduce decision fatigue, and can be helpful, but also makes us more susceptible to subconscious influences. To illustrate this point, Jones explored the findings from an experiment done on US Federal Court Magistrates judges. All of the judges in the experiment were told to imagine they were presiding over an unsuccessful settlement conference. The judges were then split into two groups. One group was told the plaintiff demanded $10 million at the conference. The other group – the control group – was not given any monetary figure. When asked to assess the proper amount of damages, the judges in the $10 million group assessed a significantly higher amount of damages than the control group. Jones explained that the judges who were told about the $10 million had “anchored” to this number, which affected their ability to come up with a “new” number for damages. The results of this experiment show that anchoring is a powerful psychological phenomenon, as it can shape the range of outcomes we later see as reasonable.

Both of these studies illustrate some of the numerous heuristics that operate below the surface of judicial (and quasi-judicial) decision making. Jones concluded his presentation by providing a series of recommendations on how counsel can leverage subconscious heuristics in Zoom hearings:  

  1. Manipulate your camera angle so that the camera is pointing up at you. This will make you appear more powerful and persuasive.
  2. Make eye contact with the camera, so your audience feels that you are looking at them.
  3. If possible, manipulate your voice to be deeper. Studies show that people find voices which are deeper to be more truthful and persuasive.
  4. Watch your verbal pace – do not go too fast or too slow. Fast speech is hard to understand, but slow speech can seem insincere or be associated with stupidity.
  5. Be careful of what colors you wear or display in the background. For example, blue is regarded as authoritative, trustworthy, and conservative, while red can be perceived as aggressive.
  6. Make sure your technology skills are competent – a failure to manage the logistics on Zoom (microphone quality, camera angle, etc…) can make you appear less credible.
  7. Use your Zoom background to your advantage – display key images or numbers to anchor your audience.
  8. Employ indications of danger if you want to encourage your audience to make more conservative decisions which preserve the status quo.
  9. If you know which judge/adjudicator will be hearing your case, run their decisions through an algorithm to determine their unique word usage. If you structure your own presentation based on the judge’s habitual language patterns, you will be more persuasive.

Those who are interested in learning more about Professor Jones’ research findings can consult his book, The Troubling New Science of Legal Persuasion: Heuristics and Biases in Legal Decision-Making.

First Panel: Evidentiary Problems Arising in Virtual and In-Person Hearings

The WCCAS conference proceeded with two panel discussions. In the first, Tracey M. Cohen QC (Fasken), Vasilis F. L. Pappas (Bennet Jones), and David Tupper (Blakes) discussed important evidentiary issues in arbitration hearings.

Tupper began by noting that, compared with formal court proceedings, arbitrations tend to apply rules of evidence less stringently. This is important to know, as it means that arbitrators have different expectations for how counsel conduct themselves throughout a hearing. Pappas observed that inexperienced counsel tend to overzealously object on matters such as the admissibility of hearsay. Since arbitrations are generally quieter affairs, it is easy to come off as disrespectful if one raises too many objections. Tupper agreed with this advice but noted that counsel should be more ready to object if there is a concern about procedural fairness (e.g., a witness is being treated unfairly).

Cohen then turned the discussion to the topic of which evidentiary rules ought to apply. Most jurisdictions stipulate that local evidentiary rules do not apply to arbitrations – rather, the discretion lies in hands of the parties and the arbitrator. This creates uncertainty in the arbitration process, which is exacerbated in international arbitration proceedings, as the parties and their counsel may hail from multiple jurisdictions. Pappas recommended dealing with this issue up front. All parties in the arbitration should agree from the outset on which rules of evidence they will apply. Cohen seconded this recommendation, explaining that the entire process will run more smoothly if everyone knows the rules from the beginning. It will also make it harder for one party to deviate from the rules half-way through the hearing (e.g., by tendering a new document to a witness during cross-examination).

When it comes to the appropriateness of live direct examinations in an arbitration, all three panelists took the positions that they are often unnecessary. Direct examinations run the risk of prolonging the arbitration process and may cause new evidence to be introduced at the eleventh hour. Because of these two concerns, direct examination should be avoided as much as possible. Witness statements are generally sufficient to replace this process, and any deficiencies in these statements can be overcome in cross-examination.

Next, the panel canvassed strategies to mitigate an interventionist tribunal (a “hot panel”). Pappas cautioned against asking the tribunal to stop intervening – this will likely be perceived as disrespectful. Rather, the best way to address this problem is to plan ahead. Brainstorm potential questions the tribunal may ask, then address them yourself so that you can control how the answers are given. During the hearing process, pay attention to the types of questions the tribunal is asking, since they will indicate the particular areas of the case the arbitrators are most interested in. If needed, adjust your strategies in direct or cross examination to address these questions. A tribunal is less likely to ask a question which you have already asked.

On the matter of having oral discovery before a hearing, both Tupper and Pappas took the position that it should be the exception and not the rule. Depending on the case’s complexity and degree of information imbalance between the parties, there may be circumstances where oral discovery can be beneficial. However, generally speaking, arbitration is meant to be quick and inexpensive, and oral discoveries tend to undercut these goals.

Second Panel: The Arbitration Record – What is and is Not Part of the Record

The second panel was chaired by Rachel Howie (Dentons), and featured a discussion between Gerry Ghikas QC (independent arbitrator and CJCA Executive Editor) and Jack Marshall QC (independent arbitrator and founding member of WCCAS) on the arbitration record.

Howie started the discussion by asking Ghikas to describe what an “arbitration record” is, and what is included in it. Ghikas distinguished between the two types of records in arbitration: the procedural record, and the evidentiary record. The former consists of the procedural history of the case (including formal pleadings, procedural applications, and correspondence between the tribunal and counsel), while the latter is the compendium of all the evidence.

Since the arbitrator is not generally required to prepare procedural or evidentiary records, who is responsible for maintaining them? Ghikas explained that this responsibility usually falls on the parties. However, Marshall explained that there are some exceptions to this rule – both the Northwest Territories and Saskatchewan require arbitrators to submit a record if their award is appealed. This obligation is often beyond the capabilities of a sole arbitrator. In Marshall’s experience, the best way to address this situation is to delegate this role to counsel.

Ghikas and Marshall also advised on how arbitrators can leverage the procedural record to protect their award from appeals. Ghikas recommended that arbitrators devote space in their award to describing how their case unfolded, from the pleadings stage all the way through to the various procedural orders made. Marshall added that is critical to include proof in the award that parties were given a full chance to make their case. This is a tried-and-true tip, and had saved one of his own awards from being successfully appealed in the past.

Moving onto the evidentiary record, Marshall explained it is important for the parties and the tribunal to have a common understanding of what is on the record and how it can be used. This common understanding should be set out in a procedural order as early as possible in the proceedings. For example, Ghikas typically issues a detailed first procedural order which sets out how and when documents, witness statements, and impeachment documents can be tendered as evidence. A failure to agree on a set of rules for the evidentiary record can be disastrous.

Howie then asked Ghikas and Marshall about the use of arbitral secretaries, in particular to maintain procedural records. Both speakers said this is not a common practice in Canada, but it ought to be. Furthermore, in light of virtual hearings, it would be prudent to have a neutral individual who can troubleshoot technical difficulties on-call throughout the proceeding.

Finally, Howie canvassed the panelists’ thoughts on including pleadings, pre-hearing briefs, and memorials in the evidentiary record. For Ghikas, the answer is no. Since an argument in written form is not evidence, no more than an opening statement in a hearing, it should not become part of the evidentiary record. Marshall had a slightly different take. For him, pleadings, pre-hearing briefs, and memorials can be included in the evidentiary recorded, provided that all parties agree. However, to avoid overloading the arbitrator with information, Marshall suggested referencing and hyperlinking key documents in the parties’ written submissions.

Howie thanked both speakers and concluded the WCCAS program.