Mock Arbitrations: The Illusion of Preparation

This is the first of two articles examining how parties prepare for high-stakes arbitration. Here we argue that the mock arbitration — the dominant preparatory tool in practice — suffers from structural deficiencies obscured by its widespread acceptance. The second article asks why this practice has persisted; the answer, we suggest, lies in a sophisticated market where both providers and buyers have rational reasons to maintain the status quo.

Mock arbitrations are now a fixture of high-stakes arbitration practice: virtually every major firm's arbitration team treats them as indispensable, and clients pay significant sums assuming the exercise yields reliable strategic intelligence. Measured against the standards of serious behavioral research, that assumption is largely misplaced.

These deficiencies are not procedural inconveniences but structural ones that call into question the premise on which mock arbitrations are sold and conducted. The risk extends beyond wasted resources: the complacency they foster can blind parties to flaws in their position and lead them to forgo settlement opportunities a rigorous assessment would have revealed.

No published study has systematically compared mock arbitration outcomes against actual results in matched cases. Sussman and Lawrence found that mock arbitrations should not be viewed as reliably predictive of outcomes. Our argument rests on the methodological standards governing serious inquiry into human decision-making, and mock arbitrations’ consistent failure to meet them.

The appeal is easy to understand: as a dress rehearsal, the mock arbitration lets counsel refine presentations, observe witnesses under pressure, and gauge reactions to the core narrative — real, if modest, benefits. But the central task in any rigorous decision-making context is anticipating how an audience will receive and act on information, and against that standard mock arbitrations fall short.

For decades, practitioners in fields as varied as political campaigning, advertising, consumer research, film and television production, and most relevant here, American jury research have treated sophisticated behavioral methodologies as a professional imperative. Arbitration practice has largely ignored those methods, leaving a gap between the rigor applied elsewhere and the rudimentary, self-referential methods still dominating arbitration preparation. Clients are thereby failed at the point of greatest vulnerability: identifying what actually drives arbitrator decision-making and forming an empirically grounded view of outcomes. These deficiencies cluster around three dimensions: predictability, timing, and cost.

Predictability: The Promise That Mock Arbitrations Cannot Keep

Predictability is the most consequential of the three dimensions. Clients commission mock arbitrations to assess how their strategy will perform, discover what works, test witness effectiveness, and gain an informed view of the probable outcome. If the exercise cannot reliably deliver on those expectations, its value whatever its cost or timing is open to serious question.

The Methodological Gap

Generating reliable predictions about how an audience will respond requires more rigor than assembling mock arbitrators and observing their reactions. It requires studies built on validated psychological constructs accounting for statistical significance. Most mocks are designed by lawyers who mean well but lack the scientific and statistical training a meaningful empirical exercise requires, training that cannot be improvised in the weeks before a hearing.

Mock arbitrations produce informed impressions, not explanations: counsel learns what a particular group concluded, but not why. The factors that most powerfully drive decisions — personality, bias, reasoning heuristics, group dynamics — operate below conscious awareness and cannot be reliably assessed through self-report, which may itself distort the underlying reality. Counsel thus lacks a principled basis for predicting whether a differently constituted panel would decide the same way.

Validity and Reliability

These are the two properties indispensable to any form of credible empirical research, and mock arbitrations lack both.

Validity asks whether a method measures what it claims to measure. Mock arbitrations generate reactions and impressions, but without a structured methodology for isolating variables (cognitive biases, reasoning heuristics, group dynamics), they cannot establish construct validity, and the outputs may differ meaningfully from what counsel believes with no way to detect the gap.

Reliability is consistency, and serious inquiry builds consistency checks into its design. Mock arbitrations contain none: conducted once, in a single compressed session, on a necessarily  one or three arbitrators, with no way to test whether reactions are stable. Because the exercise cannot be repeated, its findings are inherently unrepeatable. Results may reflect something genuine about the case, or merely an artifact of the group assembled , and counsel cannot know which, or the true value of what was purchased at considerable cost.

The contrast with rigorous behavioral research is instructive: the difference lies in what is done with subjects’ responses. Validity is pursued by designing studies around empirically validated constructs known to influence decision-making, rather than trusting that such mechanisms will surface unaided during a simulated hearing.

Timing: The Strategic Decisions Have Already Been Made

By the time a mock arbitration is conducted, the principal strategic decisions are locked in: the legal team has framed its arguments, identified its experts, selected its witnesses, and developed its exhibits. If the mock reveals a fundamental weakness, little opportunity for course-correction remains, and remedies then attempted rest on intuition, past experience, or conventional wisdom any of which may be wrong, none of which is empirical. Strategy developed under those conditions becomes opinion rather than evidence.

Rigorous behavioral research, by contrast, can be deployed iteratively at formative stages of case development, before decisions are locked in — where its impact is greatest and it shapes strategy rather than second-guesses it.

Cost

Cost is the most tangible of the three deficiencies and the one clients feel most sharply. Mock arbitration budgets are presented as line items but rarely subjected to the cost-benefit scrutiny any comparable expenditure would attract. When that scrutiny is applied, the numbers are striking.

Legal Fees

The most substantial cost component is the legal work required to mount a credible mock arbitration, which is no shortcut on preparation. Counsel on both sides defending the client's interests and simulating the adversary's case, must develop coherent case theories, build out the legal and factual framework, and review the relevant documents. The mock thus demands substantially the same work the actual arbitration will ultimately require.

In large and complex disputes the burden compounds: clients assemble separate “red” and “blue” teams for adversarial rigor, sometimes retaining a second law firm to represent the opposing party. Legal costs alone routinely reach the hundreds of thousands of dollars — and in major disputes, the millions — all incurred before the actual proceeding begins.

Witnesses and Demonstrative Evidence

Witnesses must be identified, prepared, and rehearsed for their mock testimony, and the demonstratives supporting them — charts, graphs, financial models — must be designed and refined. Mock testimony is typically truncated, but the preparation behind it is not, particularly for accounting and financial experts, whose materials take real time to produce and whose time commands substantial fees.

A point, rarely raised, deserves emphasis: without real methodological care, the mock exercise can distort the testimony it is meant to refine. Witnesses who rehearse repeatedly may “drift toward the mean,” smoothing away persuasive specificity, and repeated delivery can breed false confidence that discourages scrutiny of weaker points. Also, the mock adversary, usually drawn from the client's own team, has unconscious incentives to soft-pedal the opposing case out of deference to the senior advocate, so witnesses are often rehearsed against a weaker case than the one they will actually face.

Mock Arbitrator Fees

A mock arbitration is only as useful as the panel evaluating it. Engaging individuals with the credentials and experience necessary for meaningful feedback is not inexpensive: fees and expenses of $10,000 to $15,000 per participant per day are typical, with multi-day exercises or larger panels scaling the figure accordingly. Panels are rarely selected using behavioral-science criteria, nor are participants polled using instruments allowing rigorous interpretation. Expertise is purchased, but not measured.

The Aggregate Burden

Taken together, mock arbitration costs in a significant commercial dispute constitute a substantial financial undertaking, with a return on investment far less certain than its acceptance would suggest. Rigorous behavioral research, properly designed, delivers greater strategic insight at comparable or lower cost, and analytical value a mock cannot produce.

Conclusion

Mock arbitrations measure outcomes. Rigorous behavioral research measures the processes that produce them.

Across each dimension examined here, mock arbitration falls short: it arrives too late to shape the strategic decisions that matter most; it imposes a financial burden rarely subjected to informed cost-benefit scrutiny; and it fails at the precise task for which it is conducted: illuminating the psychological and cognitive mechanisms that actually drive arbitrator decision-making.

Reliance on mock arbitrations rests largely on tradition and convention. In every adjacent field where accurate prediction of human judgment carries serious consequences, professionals long ago moved beyond informal surrogate-group observation toward structured, empirically grounded behavioral research; arbitration practice has been slow to follow. That is finally changing: rigorous behavioral methodologies are now applied to arbitration preparation at comparable cost and with greater strategic utility. The question is no longer whether a better alternative exists. It does.

The concepts presented here and in the follow-up article are explored in greater depth in the forthcoming Kluwer publication Success in Arbitration: Winning with Applied Psychology, scheduled for December, 2026.