Contemporary Considerations of Decision Maker Bias

Abstract

For public justice system adjudicators and private practice arbitrators alike, there is more to do than deliver justice. They must be seen to do so, free from bias or undue influence. This does not mean that decision makers cannot have their own thoughts or views. In fact, experience in and understanding of the subject matter of a conflict is often seen as qualifying an adjudicator to determine the outcome of a dispute. This also does not mean that decision makers cannot have their own lives. There is good reason for adjudicators to have social media connections and relationships beyond their role of determining the outcome of a matter. From a lawyer appearing before a decision maker on video with a cat filter applied to their appearance to a judge’s criticism going viral on social media, the line for decision makers to walk to be seen as impartial is far from clear in this day and age. Does a reasonable apprehension of bias exist if opposing counsel follows the adjudicator on Twitter? How about if the decision maker and a party before them jointly spoke on a panel at a conference streamed to a limitless audience? Would discouraging adjudicators from writing articles and otherwise expressing opinions mean that they do not have them? Public perceptions are increasingly difficult to control in view of the reach of social media and the unpredictability of the Internet in this day and age. This paper contemplates key considerations from both a private and public dispute resolution lens, with the view of upholding the integrity of just and fair outcomes.

[ full article in PDF ] published March 25, 2021

CanLII link: https://www.canlii.org/en/commentary/doc/2020CanLIIDocs3642

Permanent link: https://perma.cc/VMR6-XJFS

by Marc Bhalla, LL.M. (DR), C.Med, Q.Arb, MCIArb

 


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