“Preserving Perspectives” is an ongoing initiative by the ITA Academic Council to record the evolution of modern international arbitration in the words of those who led it. As part of the ongoing project, Professor Pamela Brookman of Fordham Law School interviewed Edna Sussman, an eminent leader and pioneer of international arbitration and energy law who has written over 80 book chapters and articles on these subjects. Ms. Sussman has sat as an arbitrator in over 300 domestic and international cases and currently is a Distinguished Practitioner in Residence at Fordham University and sits on the advisory council for the ICC Task Force on Arbitration and ADR. She has previously served as a Chair of the New York Arbitration Centre, Director of American Arbitration Association (AAA), President for the College of Commercial Arbitrators and Founding Chair of the AAA-ICDR Foundation. In 2021, the American Arbitration Association awarded Ms. Sussman the Vision Award for her work in founding and chairing the AAA-ICDR Foundation.

A prominent thought leader in the development of arbitration, Ms. Sussman was on the cutting edge of many topics which are now commonplace in ADR, including mediating investor-state disputes and third-party funding. In this article I first summarize Ms. Sussman’s interview with Professor Brookman, which covered Ms. Sussman’s career and contributions to ADR. I then reflect on Ms. Sussman’s contributions to the ongoing discussion on the psychology of arbitrator decision making.

Professor Brookman began the interview with a discussion of Ms. Sussman’s beginnings. Both of Ms. Sussman’s parents were lawyers in Poland, yet out of the options of becoming a “doctor or a lawyer”, her inclination was to be a doctor because it “travels better” than a lawyer. However, after scoring well on the law board and considering the versatility of a law degree and type of analytical thinking required, Ms. Sussman decided that law was suitable for her. Her illustrious career as an international arbitrator has proven her earlier hesitation wrong.

After graduating from Columbia Law School, Ms. Sussman worked for White & Case in the early days when women were beginning to be hired. Initially, Ms. Sussman was interested in litigation because of the way in which law and facts develop throughout the life of a case. As she describes, each case comes with “new facts, new law, new people and new psychology”.

However, as she progressed in her career, it became apparent to her that litigation was slow and costly. With her growing family of four children, Ms. Sussman was attracted to the flexibility of arbitration as a method of dispute resolution. She also anticipated that arbitration would be more productive for parties overall. In 1994, Ms. Sussman was placed on the AAA panel of arbitrators and thereafter expanded her practice to include mediation in the Southern District of New York.

In the years since, Ms. Sussman has become a thought leader in international arbitration. Her paper on “Capturing the Benefits of Arbitration for Cross Border Insolvency Disputes” as part of the Fordham Papers 2012, and her many writings on practical topics such as the development of baseball arbitration and encouraging settlement as an arbitrator, have been very influential and instructive in the field.

At the same time as developing her profile in the international arbitration community, Ms. Sussman has also worked in a variety of policy and non-profit roles, including working on novel initiatives with respect to climate change, renewable energy, energy efficiency, distributed generation, and green buildings. As part of the New York City Planning and Climate Change committee, she has also considered ways in which the law can be adapted to accommodate for climate change. The AAA-ICDR Foundation, of which Ms. Sussman is Founding Chair, has also funded research for projects such as Professor Stacie Strong’s research on arbitrator decision making and an initiative which taught inmates how to resolve conflicts without violence.

Ms. Sussman credits her motivation to take part in these initiatives to the concept Tikkun Olam in Judaism, which means to “repair the world”. In this spirt, Ms. Sussman concluded the interview by encouraging young practitioners to develop their skillset and build their practice by getting involved in organizations, including through volunteer work.

In her 2013 paper, “Arbitrator Decision Making: Unconscious Influences”, Ms. Sussman explores the psychology of arbitrator decision making and the existence of biases which are unconscious psychological influences.1Edna Sussman, Arbitrator Decision Making: Unconscious Influences, 3 AMERICAN REV. OF INT’L ARB. 487, 488 (2013).X1  She describes how one’s motivation to make the right decision and an arbitrator’s strong sense of accountability to the parties and the tribunal can
counteract intuitive biases or “blinders”.2Sussman, supra note 1, at 507.X2  While there are deliberative processes arbitrators can use when reviewing their cases,3Sussman, supra note 1, at 507.X3  these debiasing techniques require further research in
academic literature. Ultimately, Ms. Sussman suggests that “additional effort to factor psychological influences into the selection of the arbitrator and into the case presentation may
be desirable”.4Sussman, supra note 1, at 514.X4 

In short, Ms. Sussman’s article encourages arbitrators not to lose sight of the human element to the psychology of cases in the pursuit of perfect fairness. In essence, all disputes are founded on human interaction, and human nature is wildly imperfect. Judges and arbitrators also fall prey to biases. The formalist view that reason is objective, and law requires strict application, is contrasted with the realist view that all judgments are biased by a judge’s individual experiences. Yet, regardless of one’s preferred jurisprudential viewpoint, bias is something that must be painstakingly acknowledged by decision makers and addressed through internal checks and balances.

This idea is not new. Indeed, the concept of “prejudice” in evidence law implies the existence of bias, and law is created to address the impact through, for instance, the exclusion of evidence. Furthermore, law, and the application of law, is not merely an automatic intuitive process, since each case requires deliberate analysis on the specific set of facts. Kantian philosophy differentiates the faculty of “thinking” from “knowing”, an exercise crucial to judgment.5Hannah Arendt, Thinking and Moral Considerations: A Lecture, 38 SOC. RES. 417, 422 (1971).X5  Hannah Arendt similarly posits that thinking is the quest for meaning whereas knowledge is like “a scientist’s thirst for knowledge for its own sake”.6Arendt, supra note 5, at 424.X6  According to her, the faculty of thinking is, by nature, self-contradictory and unnatural such that “it undoes every morning what it had finished the night before.”7Arendt, supra note 5, at 425.X7  Yet perhaps its vital function is that it checks the ego of the thinker.

In the field of international arbitration, safeguards in existing law, and particularly those in the law of evidence, may provide such “checks” for arbitrators when considering instances which are vulnerable to biases. It is through safeguards in the law of evidence that biases or prejudices are addressed procedurally. In some jurisdictions, for example, prior criminal acts are ordinarily inadmissible with some exceptions. Admitting evidence of a prior crime in most circumstances would bias decision making and would be too prejudicial to the accused. The law thus uses procedural rules to factor in bias.

Rules surrounding failed settlement offers could also be instructive to arbitrators and counsel. For example, under Ontario Rules for Civil Procedure,8Rules of Civil Procedure, R.R.O. 1990 Reg. 194 (Can.), R. 49.X8  where an offer to settle is rejected, and the offeror obtains a judgment as favorable or more favorable than the offer, cost consequences arise in favor of the offeror. The motivation behind such a law is to encourage reasonable settlement. In arbitration, whether a failed settlement offer should be considered or excluded from evidence is debatable. On one hand, including a failed offer letter may cause the arbitrator to be biased against the party who did not accept the offer. On the other hand, excluding the offer may require the arbitrator to take a look at the offer first, in order to determine whether it should be excluded. In order to exclude the instance of bias, an arbitrator could specify, as early as the first procedural conference with the parties, which offers to settle could be admissible and which could not.

Edna Sussman has made an enormous contribution to the development of arbitration. In furtherance of Ms. Sussman’s call to factor psychological influences into an arbitrator’s decision making, I suggest that arbitrators review the substantive rules of evidence in the jurisdiction of the arbitration clause. Rules of evidence often already account for situations that are susceptible to bias, and thus may be instructive for identifying potential blind spots and helping an arbitrator maintain neutrality. By doing so early in the proceeding, arbitrators may avoid the appearance of bias later on.