Scholars have explored the impact of the unconscious on legal decision-making. Research has shown that, as with all human beings, intuitive reactions play a significant role in judges’ and arbitrators’ decision-making. This article examines the unconscious intuitive processes in the arbitration process and offers suggestions to foster a more robust deliberative overlay and improve the quality of decisions by arbitrators. It also provides suggestions for counsel’s consideration to aid them in capitalizing on these unconscious influences. In order to provide a context that reflects actual arbitrator decision making, the results of a survey of arbitrators is reported where they illustrate and amplify the psychological influence discussed.

The chapter offers visceral examples of the limits of human attention and how technology can be used to counteract those limitations. It opens with a story about world-famous rock climber Lynn Hill and an instance where she forgot to tie herself correctly to the rope - resulting in a fall of over 40 feet. This rock climbing accident provides a basis for exploring what attention is, the different types of attention, and why attention explains the creativity inherent in ADHD. There is also a short test readers can take to experience the limits of their own attention. Next, we explore some controversial stories of people who forgot their children in hot cars. Attention research explains why we can’t expect parents to stop forgetting and why we need safeguards other than admonishing people to “be more careful.” A last grim example documents the kinds of injuries people get from table saws, totaling about 4,000 missing fingers per year. The title of the last section is “Safety Doesn’t Sell,” because people are unwilling to pay extra for safety features since they think these accidents won’t happen to them. Table saw manufacturers have fought requirements for providing safety systems but the conclusion restates that since we cannot improve or extend human attention, technological solutions are our only hope.

In the literature on judgment and decision making, a distinction is drawn between the effortless, fast, and automatic thinking of System 1 and the effortful, slow thinking of System 2, which requires deliberate attention and control. Owing to its cognitive ease, the uncritical thinking of System 1 operates by default. When the stakes are sufficiently high, we can engage in more critical thinking. We conceptualize critical thinking as scientific reasoning, an array of human inventions specifically designed to overcome the limitations and biases inherent to the efficient but error-prone System 1 thinking. We organize this discussion of critical thinking around five guidelines for scientific reasoning: consider alternative explanations to establish competing predictions, collect data as systematically and comprehensively as possible, establish a specific and reliable protocol, consider the role of chance, and weigh all available evidence. As a concrete illustration, running throughout this chapter is an examination of the power of sports momentum. We define the construct, attribute its appeal to aspects of System 1 thinking, and show how a more critical appraisal that follows the guidelines for scientific reasoning suggests that sports momentum may be little more than a cognitive illusion.