While much attention is given to the biases that jurors can bring into courtrooms and to how these biases can affect deliberations, it is generally assumed that non-jury fact-finders – judges, mediators, and arbitrators, typically – are largely immune to these biases. Their decisions carry a greater presumption of objectivity based on their training and their status in the litigation. Thus, counsel typically do not devote extensive time, attention, or expense to identifying and reckoning with potential bias in these settings.
Research has shown, though, that external variables can influence decision making even for “objective” fact-finders. Judges have shown more empathy to parties demographically similar to themselves[1] and their decisions are sometimes influenced by a desire to please their “audiences,” i.e., their social groups and professional peers, to avoid alienation.[2] In arbitrations, the nature and extent of arbitrators’ training and professional experience has been demonstrated to affect both the way they process evidence and their award decisions. [3]
Political attitudes and identities in particular have affected how U.S. Supreme Court Justices rule. Research shows, unsurprisingly, that Democratic justices have been found to reach more liberal decisions. Ideology has an effect in lower courts as well: Republican judges, for example, tend to impose longer sentences in criminal cases than their Democratic counterparts[4].
Some of these potential sources of bias are readily apparent while others may be less so. While judges and arbitrators may be better trained than jurors at setting aside their biases and focusing on the law, this does not mean their biases do not exist and do not sometimes affect their decision-making. We all have biases of which we are not even aware, often called implicit bias. Research has demonstrated that implicit bias in judges has been linked to differential sentencing for Blacks and Whites under certain conditions, and to custody decisions with regard to gender.[5]
It is also noteworthy that judges may not accept their own weakness in this regard easily. In one study, 97% of judges surveyed rated themselves as better than the median judge at avoiding racial bias[6] — reminiscent of Garrison Keillor’s Lake Wobegon, where “all of the children are above average.”
Similarly, concerns have been raised about the role implicit bias may play in other forms of dispute resolution, with some noting the relative lack of racial diversity among arbitrators as a particular concern.[7] Here, we are not talking about the kinds of bias that parties to litigation sometimes fear due to undisclosed relationships or financial interests, but rather, biases based on values or stereotypes that may not even rise to levels of consciousness.
Researching prospective jurors before or during jury selection has become almost de rigeur, particularly in high-stakes trials, precisely because it is so useful in identifying the life experiences, cultural values and other factors that can be associated with potential bias for or against particular parties. The evidence that other fact-finders can also have these biases highlights the importance and the benefits of conducting research and learning about those who are ruling in non-jury proceedings, rather than erroneously assuming extrinsic factors are not relevant. Below, we discuss the types of research we have conducted prior to arbitrations and bench trials and how to maximize the benefits of each.
Learn About Your Fact Finder
One of the potential benefits of arbitration over litigation is that in the former, parties often (though not always) participate in choosing the specific arbitrators for their matter. Neither party has complete control, obviously, but there is far more input than if one is headed to a bench trial before a randomly assigned judge. In FINRA arbitrations, for example, the parties are provided with lists of potential arbitrators for each of three categories (chairperson, public arbitrator, and non-public arbitrator), and each party gets to strike a certain number of candidates in each category and rank the others in order of preference. In this and similar situations, parties would be squandering valuable opportunities if they did not research the candidates’ backgrounds to ensure they were making informed decisions.
Some of the information parties should look for is obvious: What is the arbitrator’s past record with regard to similar cases? Has (s)he tended to rule in favor of the claimant or respondent? Does (s)he tend to award damages and if so, do the awards tend to match the requests? And does the arbitrator have a history with either party in the present dispute, or with similarly situated litigants? If so, how did (s)he rule?
All of this information is readily available in the materials supplied by FINRA – and typically, by whatever mediation service is being utilized – as is basic demographic information and employment history. As jury consultants, we go beyond the obvious and consider: What does the information that we are seeing tell us about how the arbitrator is likely to think about the present matter? We consider the psychological implications of their experiences, their descriptions of themselves in their personal background statements, and any other information we can find about them in social media searches.
For example, counsel representing a claimant seeking a large award could find several items of interest in an Arbitrator Disclosure Report. Beyond the information described above regarding past rulings (for claimant v. respondent) and award patterns), personal information in the report allows us to learn more about arbitrators, from basic demographics to work experience. The report might reveal that the arbitrator comes to FINRA or to JAMS with a background in family mediation or has worked with youth on conflict resolution and violence prevention strategies, for example. An arbitrator with this focus may be less appealing for the claimant than a business professional potentially more attuned to the financial harm at issue. Through additional background searches, we aim to further our knowledge of the arbitrators, locating information such as criminal history, political party registration and donations, investment history, and views on social issues.
In the past decade, the political affiliation of arbitrators, along with other fact-finders, has become an issue of greater concern. As the long arm of the current administration touches virtually every sector in which cases might be litigated, more companies and individual litigants may find themselves directly or indirectly dealing with questions with political implications. For example, how does one handle an employment action taken in 2025 that directly contravenes the DEI standards of the employer at the time of hiring, which have since been reversed or undermined?
Even if the matter itself does not have political implications, the people in the case are important as well. Mindful of research about high levels of animosity between those with different political ideologies,[8] it may be hard even for reputedly objective arbitrators to remain neutral if they are staunch liberal Democrats and one of the parties before them is a known MAGA Republican. This is information you surely want if you are representing that MAGA Republican – or the party opposing them – and are in a position to weigh in on arbitrator selection.
Beyond identifying potential biases, it is also helpful to obtain a psychological perspective on how an arbitrator might approach a case. Depending on personal and professional background, people can enter a group interaction like an arbitration with a more task-oriented (“let’s get the job done”) or more socio-emotional (“let’s make sure people feel good about this”) approach to the job at hand. Depending on the nature of the case and the particular positions of each party, one approach may serve your client better than the other. Those with expertise in human behavior can often discern the likely orientation of the arbitrator along with other key information from the background information uncovered in background research. This, too, will add value as you rank and strike arbitrators during the selection process.
We note here that research on judges in bench trials usually occurs less formally. While it is always useful to know as much about your judge as you can, attorneys often get information from their peers, from local colleagues, from observing the judge in action prior to trial (including in their own pre-trial appearances) and other personal sources. For better or worse, judicial biases are often relatively well known and realistically, with no control over who is assigned to their case, the best attorneys can do is work with the information they have and hope not to get on a judge’s wrong side if (s)he has one.
Mock Bench Trials and Mock Arbitrations
Mock bench trials and mock arbitrations can be highly illuminating and just as valuable as simulations with mock juries. Mock bench trials involve testing a case before a small number (typically 3) of fact-finders – typically, retired judges – recruited for similarity to the actual judge and obtaining feedback on key issues including a final verdict. The case presentation can range from a relatively tight summary to an extended mock trial with witness testimony and briefings, depending on time and budget considerations and the concerns at hand. After the presentations, each mock judge is debriefed at length individually; then, frequently, the consulting team, mock judges, and legal team participate in a roundtable for a broader discussion of issues that arose and how to resolve them.
Mock arbitrations are similarly structured, except that the fact-finders are set up as panels rather than individuals; thus, a case might be presented to nine arbitrators who would then be divided into three 3-member panels and asked to deliberate and render a decision at the end of the exercise.
The mock fact-finders are typically matched to the actual fact-finders on demographics, political, and legal orientation (e.g., do they tend to be conservative or liberal?), and any other key indicators that may play an important role in the matter at hand. Personal politics are worthy of attention in the current climate, and a mock trial or arbitration offers an opportunity to analyze the role that such politics might play in fact-finders’ analyses and their ultimate decisions. Thinking about bench trials in particular as tensions rise among law firms, the Executive Branch and the judiciary, political considerations are likely to permeate the courtroom in new and intense ways. Extensive background research on your presiding judge coupled with pre-trial research using proxies matched to your judge on key political and other factors can prepare attorneys to reckon with these considerations.
In these complicated times, the evidence points in a clear direction: Pre-trial research is not just for juries anymore.
Reprinted with permission from the August 25, 2025, edition of the New York Law Journal © 2025 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.
[1] Chen, D.L. & Loecher, M. (2023). Mood and the malleability of moral reasoning: the impact of irrelevant factors on judicial decisions. Journal of Behavioral and Experimental Economics, Volume 116. https://www.sciencedirect.com/science/article/pii/S221480432500031X/pdfft?md5=30d0e7674ff4bd5de78f0e75883b787d&pid=1-s2.0-S221480432500031X-main.pdf
[2] Oldfather, Chad M. (2007). Judges as humans: interdisciplinary research and the problems of institutional design. Hofstra Law Review, Volume 36, Issue 1, Article 6.
[3] Choi, S., Fisch, J.E., & Pritchard, A.C. (2014). The influence of arbitrator background and representation on arbitration outcomes. All Faculty Scholarship, 1546.
https://scholarship.law.upenn.edu/faculty_scholarship/1546;
Jafary, M., & Carrière, J. (2024). The effects of the sociodemographic factors on judgement building in arbitration. Industrial Relations Journal, 55, 185–204. https://doi.org/10.1111/irj.12422
[4] Harris, A.P. & Sen, M. (2019). Bias and judging. Annual Review of political science, 22:241–59. https://doi.org/10.1146/annurev-polisci-051617-090650
[5] Rachlinksi, J. & Wistrich, A.J. & Donald, B.B. (2020). Getting explicit about implicit bias. Judicature, Volume 104, No. 3 (2020-21), Judges on the March.
[6] Guthrie, C., Rachlinski J.J., & Wistrich A.J. (2009). The “hidden judiciary”: an empirical examination of executive branch justice. 58 Duke Law Journal 1477-1530. https://scholarship.law.duke.edu/dlj/vol58/iss7/8
[7] Jacobius, M. Langford Morris, D., & Mooney, L. (2022). Combating implicit bias in alternative dispute resolution. Law360. https://www.jamsadr.com/files/uploads/documents/articles/jacobius-morris-mooney-law360-combating-08-2022.pdf
[8] Rudolph, T.J. & Hetherington, M.J. (2021). Affective polarization in political and nonpolitical settings.
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