Pauline Tesler Explains Why Integrative Law Matters

Children, families, and communities suffer when lawyers use 19th century methods to help people resolve interpersonal legal disputes.  The Integrative Law Institute teaches lawyers 21st Century, science-based ways to help people resolve conflicts and make peace.

Watch this short video to learn more:

Men and Women: Our Brains Really Are Wired Differently

Men from Mars, Women from Venus?

Men from Mars, Women from Venus?

Does it make you uncomfortable to think that there really are biological differences in the brains of men and women?  Not me; I’ve seen those differences play out over a lifetime in precisely the ways suggested by a new study  published in the prestigious Proceedings of the National Academy of Science.        Researchers at the Perelman School of Medicine at the University of Pennsylvania have discovered many more neural connections running from the front of the brain to the back within each hemisphere in males, while in females there are far more connections running left and right across the two hemispheres.

According to lead investigator Ragini Verma, Ph.D.,   the wiring in men supports greater connectivity between sense perceptions and coordinated actions.  In contrast, female wiring patterns facilitate greater connectivity  between analytical and intuitive capabilities. “These maps show us a stark difference–and complementarity–in the architecture of the human brain that helps provide a potential neural basis as to why men excel at certain tasks, and women at others,” the researchers concluded.

For instance, they report that  on average, men tend to be better at learning and performing a single task at hand, like cycling or navigating directions, whereas women tend to display superior memory and social cognition skills, making them on average better equipped for multitasking and creating solutions that work for a group.Male and Female Brain Wiring

Why do studies like this matter?  Sure, sex discrimination in the workplace remains real and limits income and upward mobility for too many talented women. But don’t we now see enough women of power and accomplishment in business, industry, education, the professions, and government that we may be ready to celebrate and make good use of our differences rather than insisting on biological sameness as necessary  foundation for sexual equality?

Might these differences also have implications for the work of conflict resolution professionals?  I’m not suggesting sexual stereotyping, but  we’ve now got hard science to support our intuitions about  how  clients process information.  Since these  gender-based brain differences are real, I’m suggesting that awareness of the differences might be a tool that could help us quickly figure out what’s going on during negotiations and how we might help.

Consider that the  “homework assignments” we give clients to prepare for negotiating sessions can serve more than one purpose.  There is specific information we need them to gather that is an essential foundation for bargaining toward settlement.  At the same time, we may be able to help emotionally overloaded clients to calm down and feel more competent if we make sure that the  homework we give them includes tasks that play to their strong suit, whether it’s drilling down on a specific problem and solution, or whether it’s intuitively imagining what the human needs and challenges might be in connection with various options for resolution.

What do you think?  Are these biological differences in the architecture of male and female human brains a useful perspective for illuminating how our emotionally-distressed clients–or even our professional colleagues– may be approaching problem solving?

 

 

What is Neuro-Literacy and Why Should You Care?

Pauline Tesler, Family Lawyer Magazine: April 22, 2013

http://www.familylawyermagazine.com/articles/what-is-neuro-literacy

1. What is NeuroLiteracy and Why Should You Care About It?

A flood of neuroscience research studies (including imaging technologies as well as animal and human studies) is yielding remarkable discoveries about the workings of the human brain, discoveries that challenge core beliefs about human consciousness and rationality imbedded in our legal institutions and jurisprudence. This growing body of evidence carries potentially revolutionary implications for our day to day work as lawyers, depicting a brain that is driven not by reason, but by emotion– a brain that has changed little in 20,000 years. This article aims to introduce the practical value of this burgeoning knowledge , and the importance for lawyers of developing basic “neuro-literacy.” [2]

The sheer volume of game-changing discoveries about the workings of the human brain means there is no orderly body of knowledge for lawyers to absorb and reduce to proven practical applications. But there is plenty of evidence to suggest that the impact of these new understandings will be transformative for dispute resolution practice. Even without definitive proof, we can put these new findings to good use if they pass our personal “smell” test : if they appear plausible and potentially helpful, and if we see no likelihood of harm. The questions we need to ask before incorporating practical neuroscience applications into our daily work are straightforward and simple:

  • Does this research finding sound plausible in terms of what I know about human behavior during conflict, negotiations, and decision making?
  • Can I devise a practical way to apply this finding?
  • Do I think the application might be helpful?
  • Would trying out my idea be unethical, dishonest, improperly manipulative, or otherwise inconsistent with highest standards of practice?

2. Practical Neuro-Literacy Replaces “Naïve Realism” with “Neuro-Realism”

Emerging understandings about the workings of the human brain can (1) enrich the lawyer-client relationship (2) enhance interactions with clients and colleagues during negotiations, and (3) facilitate achieving clients’ goals during negotiations through techniques we can weave into every stage of representation. This vast terrain of potential applications cannot be explored in any depth in an introductory article. It is possible, however, to give readers a glimpse of what we have learned about some harmful effects flowing from unexamined assumptions that rational thought should be the primary way to attain clear understanding of external realty and arrive at truth. Those assumptions go to the heart of our professional identity as lawyers, and we now know that biologically speaking, they are simply wrong. We also can look briefly at how a more scientifically sound understanding of the role of emotions in our work with clients might play out in two of those three potential areas of application: the lawyer-client relationship, and interactions during negotiations. [3]

Re-tooling for neuro-literacy begins with facing the implications of “naïve realism,” a seductively simplistic habit of mind found in abundance among lawyers. Naïve realism, simply put, holds that:

  • I see reality as it actually is. My actions and beliefs are based on a sound rational interpretation of reality.
  •  Other people would share my view and actions and opinions if they had access to the same information that I have and if they have processed that information in a reasonable way, as I do.
  •  If others don’t share my views, it’s because:
    •  they have insufficient or incorrect information; if they will pay attention to my information we can reach an agreement;
    •  they are lazy or stupid—i.e., not making rational decisions based on the right information;
    • They are biased by ideology, self-interest, or some other distorting influence. [4]

In reality, research confirms that our sensory perceptions and the thinking we base on those perceptions are inherently limited and fallible. Our brains select only a very small sliver of incoming sensory data and make meaning by attempting to match the limited data to similar prior experiences. The brain approximates reality; it tells a story about the incoming data that fits with what we have encountered before. Thus, the human brain is not like a camera, but more like a film editor, making a coherent movie out of unrelated bits and pieces according to a pre-existing script. What our senses do not register is vastly greater than what they do register; before any thoughts or perceptions even hit our conscious awareness, they have been edited to cohere to the most likely similar pattern our brain has stored, minus everything that is unnecessary for the pattern to match up. In a sense, then, we perceive what we expect to perceive, and we notice as new only that which confounds our expectations in a way that triggers an emotional response. We notice the slavering dog racing toward us down the beach; we notice our own name spoken in passing in a nearby conversation that until then was meaningless buzz. We do not notice the man in the gorilla suit strolling slowly across the basketball court, because he’s not part of the game where our attention is fixed. Thus, our mantra as we embark on becoming neuro-literate might be the words of Nobel prizewinning physicist Richard Feynman: “The first principle is that you must not fool yourself, and you are the easiest person to fool.” We have a lot to learn, and even more to unlearn, if we are to move into 21st century lawyering based on an accurate understanding of how we, our clients, and our colleagues apprehend reality and make decisions.

Our interaction with our clients is deeply influenced by the jurisprudence in which we work. In turn, jurisprudence is founded on a theory of how people think and act—and thus, on a theory of the mind. Our legal culture is infused with a belief that the human mind is, or should be, entirely rational when it is functioning properly, and that each client is a bounded rational individual who owns a bundle of rights and entitlements that sometimes conflict with the bundle belonging to someone else. Reasoning is how the law resolves those conflicts, based on orderly presentation of sensory facts whose meaning ultimately is decided by a third party authority. Therefore, our jurisprudence is deductive, rules and norms based, and hierarchical.

Our professional identity and habits are honed to function well within that system; we work every day with assumptions about informed consent, choice, and decision making grounded in beliefs about the primacy of reason and cognition so pervasive as to be virtually invisible. This is called “thinking like a lawyer,” and when we do it, our clients and even we ourselves take on an archetypal quality in which complex individuality is subordinated. The welter of confused impressions, hopes, fears, and desires that constitute the client’s narrative and our own sensory experience of that incoming narrative are abstracted by the thinking layer of our brains into legally framed arguments based on individual rights and entitlements.

Our focus on individual rights, our reliance on argumentation, and our conviction that considerations in the emotional and relational realm have no place in our work arise from an 18th Century rationalist jurisprudence that is tone deaf to the spectrum of non-justiciable concerns that our clients care mightily about. Equating strong advocacy with strong assertion of positional arguments about rights and entitlements makes good sense in a rules-based third party decision-making model, but makes far less sense in client-centered, interest-based out of court modalities like collaborative law because collaborative law (like some modes of mediation [5]) aims exclusively at finding acceptable solutions based on client interests and values, entirely outside the courts, without any involvement of third party decision makers. We are by definition working in the realm of human (as distinct from purely legal) conflict.

It turns out Adam Smith was just plain wrong about rational self interest as the driving force for human decision making. Contrary to the assumptions of thinkers since Plato, functional MRI studies confirm that complex rational thought does not drive our behavior. Rather, every choice we make arises not from our uniquely human cerebral cortex, but from the limbic brain, the seat of emotions and a brain structure we share to a degree with all other mammals. [6] Even the choice of Cheerios or Corn Flakes for breakfast is driven by and cannot be made without emotion, the moving force and sine qua non for thought. Thus, to the extent that we rely upon 18th Century enlightenment bargaining techniques based on a naïve realist model of decision making as our frame for negotiations in a client-centered interest based model, we are using a hacksaw to do brain surgery.

3. Practical NeuroLiteracy Enriches How We Relate To Our Clients

No client, asked when the divorce began and when it ended, will ever answer by naming pieces of paper (petitions, complaints, settlement agreements, judgements). Every divorce lawyer knows that our clients experience divorce as an extended human transition of operatic dimensions, with emotionally exhausting peaks and valleys involving betrayals, bad faith, and narcissistic wounds that call into question identity, core values, and even the will to survive. At the forefront of attention for most clients are concerns fraught with emotional content (grief, loss, disappointment, anger, fear, mistrust, and the like). But for lawyers locked in an 18th Century naïve realist model for legal dispute resolution, the sole focus of negotiation is abstract legal “containers” stripped of the emotional context in which clients experience divorce-related conflict. The containers are labeled alimony, child custody, child support, and property division. For the client, an exchange of quantifiable positions about the issues under these legal rubrics leaves unnamed, unventilated, and unresolved the underlying emotional forces that drive the conflict. Our clients frequently leave such settlement processes with little or no sense of the closure or “ownership” that are the hallmarks of deep conflict resolution.

Our brains organize memory in neural pathways that include sensory data saturated with intense emotions; these patterns shape incoming sensory data to fit the pre-existing template. Every time our client recalls the bad experiences surrounding separation and divorce, a pattern in her implicit memory system is reactivated, strengthened, and altered, so that today’s painful experience merges contextually with every other similarly painful relationship experience extending back into childhood, gathering force and in a sense rewriting the story of the marriage –not only now but as it was lived previously–through the lens of pain, disappointment and betrayal. Each reactivation of this increasingly emotion-saturated narrative trope triggers involuntary physiological events throughout the body as it prepares to defend against attack. Blood pressure rises, heartbeat speeds up, cortisol floods the bloodstream. As a direct result the newer cognitive centers of the brain—located in the neo-cortex, which engages in cause and effect thinking and in imagining new solutions to old problems—go offline for as long as several hours after a triggering memory while the “fight, flight, or play dead” response plays out in body and mind. Some studies have suggested a substantial temporary drop in I.Q. of 30 points or more when a spouse experiences rejection by the former partner. Our divorcing clients are required (perhaps for the first time in their lives) to make complex and far reaching decisions about finances and parenting at a time of unprecedented and sustained stress, and for many of them, deep and wounding rejection is the context in which this decision-making must take place. We are, in other words, representing clients who may for much of the time we work with them be experiencing transient states of diminished capacity.

We cannot erase their pain, and we cannot rewrite their history; but I believe we do have a professional responsibility to understand how unrealistic , unhelpful, and biologically incorrect a rationalist decision-making model really is for distressed clients. What might change for the better if we brought practical neuro-literacy into the picture? Quite a lot. For instance, if we appreciated the reality that for the emotional brain there is little or no difference between experiencing something, imagining it, remembering it, and recounting it, and if we also appreciated the inescapable neurobiological reality that in the presence of strong emotion, the rational thinking brain will be switched “offline” for perhaps hours at a time, we would understand the importance of ensuring that no client is encouraged to make “rational” decisions soon after re-experiencing the intense emotional states invoked by recounting or recalling intense divorce-related narratives. The artistry of when and how we attend to our clients’ pain-saturated stories, and how we encourage clients to envision the goals of their divorce separate and apart from the pain of the marital breakup, can be greatly enriched by a grounding in practical neuroscience.

We can also be clear about the difference between empathy and destructive alignment or identification as we fulfill our responsibilities as effective advocates. We can reconsider how we respond when a client retells the painful history of the divorce or the most recent spat with the “ex.” If, like a litigator constructing a winning theory of the case, we align with and magnify the unhappy story, we are in a literal sense altering our client’s brain for the worse, diminishing the ability to remember anything positive, foreclosing the capacity for clear thought, and reducing the ability to entertain constructive options for the future. Instead, as neuro-literate advocates, we can learn new skills for reframing the emerging narrative into one more congruent with the client’s best hopes for the future.

When we consider new neuroscience understandings about how pain-saturated stories diminish our clients’ capacity to plan effectively for their own future and the future of their children, it is difficult to escape the conclusion that neuro-literacy is no longer optional. We do not need to be psychotherapists to learn better and more effective empathic skills that allow us to form alliances that help rather than harm angry or distraught clients; we do not need to be neuroscientists to learn how to work constructively with pain-saturated narratives to help clients return more quickly to higher-functioning cognitive states. Skills like these should constitute vital parts of the core professional education of divorce lawyers—especially those of us who choose to work in consensual out-of-court models that depend on full client engagement, and that promise a deeper and fuller kind of resolution than is available from a court

4. Practical NeuroLiteracy Enhances Interactions with Clients and Colleagues during Negotiations

In the 1990’s Marco Iacoboni, an Italian researcher, and his colleagues accidentally discovered a previously unknown neuronal function in the brains of macaque monkeys and subsequently in human brains, called “mirror neurons,” which most evolutionary neuroscientists now believe are the key to our capacities for empathy, language, and self-awareness. Subsequently, a Stanford psychologist named Paul Ekman took Iacoboni’s work to the next level by demonstrating that human beings across all languages, cultures, and levels of sophistication express and understand emotions through mirroring and reading facial expressions that are universal. Thought to be a key evolutionary advantage, mirror neurons enable all of us to “know” without engagement of any of the higher cognitive brain centers whether a person is friend or foe, happy or sad, flirtatious or disgusted, truth-teller or liar. We know what others feel by assuming the same expression and thereby simulating or mirroring in our own bodies the sensory output. We feel one another’s pain and joy in the most literal way, as an evolved biological mechanism for rearing infants and for forming and sustaining relationships and communities built on trust and cooperation—the evolutionary advantage that has allowed us to develop complex cultures. Moreover, we don’t merely read the emotional language of others; the emotional states of each of us are contagious to everyone in proximity to us, without us usually being conscious of the phenomenon.

It follows that every communication between and among the lawyers and the parties in a case necessarily carries a biologically wired emotional substratum. Lawyers unsophisticated in the workings of mirror neurons may make the well-intentioned error of allowing distressed clients to unload on one another at settlement meetings, believing there is something constructive in what they call “catharsis.” Not so, neuroscience tells us. Each client, and everyone else in the room, will simulate via their own mirror neurons the intense emotions being expressed, and will experience in their own bodies and brains the “fight or flight or play dead” evolutionary defense program that strong emotion triggers. The possibility of creative problem solving disappears, neurally speaking, for quite some time following such a “catharsis.” For clients, another round of the same old fight also reinforces the implicit memory attractor patterns that register every shred of evidence confirming the other’s unworthiness of trust and respect, while diminishing the brain’s ability to notice disconfirming evidence of good faith that does not match the increasingly charged negative pattern.

If catharsis is counterproductive, should we instead instruct clients to “suck it up,” or adopt that strategy ourselves when frustrated or angry at someone else in the negotiating room? It turns out that won’t work well, either. Our facial muscles, body language and the timbre of our voices speak louder than words, communicating our actual feelings and contaminating the environment at the table. If the feelings are there, they will be read by every brain in the room and can silently undermine trust and cooperation.

How might practical neuro-literacy help us address more effectively the eruption of negative emotion during case-related communications?

  • We can learn “self scanning,” a technique for becoming aware of how various emotions express themselves uniquely in our own bodies. This can become an early warning system, alerting us that we are becoming anxious or irritated before the emotion reaches a volume that shuts down higher level cognitive processes like planning, creative imagination, and cause-and-effect analysis.
  • With a more nuanced awareness of our emotions as they play through body and mind, we can invoke self-soothing techniques that operate at the neural level to abort emotional “hijacking” of higher brain functions. Functional brain imaging studies show that meditation and similar awareness practices can modulate the effects that otherwise accompany negative emotional states.
  • We can teach clients simple techniques to soothe and avert emotional meltdowns, many of them involving sensory inputs associated with implicit memory patterns of relaxation, trust, and other desired states. Some of those associations may be uniquely personal, such as listening to a particular piece of music or experiencing a scent associated with a particular positive memory or looking at a photograph of a beloved child, while others may be shared by most of us—the positive effects of deep breathing, soothing touch, or of endorphins generated by taking a break for a short brisk walk.

Collaborative lawyers have employed these and similar techniques for nearly two decades. Now, hard science confirms that far from being touchy-feely ideas, these techniques work because of how our brain works. Strong emotions should neither be allowed to contaminate the safe space of the negotiating room, nor be excluded from the negotiation process. Learning how to manage them constructively is part of becoming neuro-literate. [7]

5. Conclusion

At this point, you may wonder, “what on earth does this stuff have to do with lawyering?” The answer is, quite a lot.

Chief Justice Warren Burger famously observed, “The entire legal profession—lawyers, judges, law teachers—has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers—healers of conflicts. Doctors, in spite of astronomical medical costs, still retain a high degree of public confidence because they are perceived as healers. Should lawyers not be healers? Healers, not warriors? Healers, not procurers? Healers, not hired guns?” [8] In the same vein, Robert Benham, the first African American to serve as Chief Justice of the Georgia Supreme Court, has spoken of three fundamental professions found in all civilized societies—medicine, which heals the body, the clergy, which heals the soul, and law, which properly understood heals breaches in the social fabric. [9] Justice Benham went on to describe the law codified in statutes and reflected in appellate decisions as the “floor” for acceptable behavior in a society: go below it and you encounter trouble with the law. He lauded the collaborative practice movement for encouraging our clients to explore the space between the floor—their legal rights and entitlements—and their own highest values. The emerging neurosciences offer us a rich harvest of understandings and tools to support the work these distinguished jurists have encouraged us to embrace as healers of breaches in the social fabric.

No act of will can force us, or our clients, to cease operating according to the deeply wired biological programs that are our evolutionary legacy, and there is no simple checklist of “ten easy ways to help your client stop being emotional at inconvenient times.” Becoming neuro-literate in conflict resolution work means embarking on a long and very personal process of recognizing when we are in the throes of unhelpful naïve realism, and gradually developing nuanced new skills to replace positional argumentation based on deductive logic . This is a tall order. Such retooling cannot be done alone. [10] In this regard, collaborative law, which is inherently collegial and which is built on protocols and roadmaps for sophisticated professional teamwork, represents one of the cutting edge methods for reshaping our understanding of what it means to be effective advocates in the 21st century.

 


[1] By Pauline H. Tesler, Certified Specialist in Family Law (State Bar of California Board of Legal Specialization); fellow, American Academy of Matrimonial Lawyers; Fellow, American Bar Foundation; co-founder and first President, International Academy of Collaborative Professionals; recipient of first ABA “Lawyers as Problem-Solvers” award. Ms. Tesler wrote the first treatise on collaborative law, COLLABORATIVE LAW: ACHIEVING EFFECTIVE RESOLUTION IN DIVORCE WITHOUT LITIGATION (American Bar Association, 2001, 2008), and the first book for general readers about interdisciplinary collaborative divorce: COLLABORATIVE DIVORCE: THE REVOLUTIONARY NEW WAY TO RESTRUCTURE YOUR FAMILY, RESOLVE LEGAL ISSUES, AND MOVE ON WITH YOUR LIFE (Regan Books/Harper Collins, 2006). She writes, speaks, blogs, and trains internationally about interdisciplinary collaborative practice, and about practical neuroscience applications in conflict resolution work, and consults with lawyers and law firms about expanding competency in these areas. Ms. Tesler recently founded the nonprofit Integrative Law Institute at Commonweal (“ILI”), of which she is Director. ILI’s mission is “reclaiming law as a healing profession.” ILI offers continuing education programs at the nexus where legal dispute resolution practice meets personal conflict resolution facilitation, positive psychology, neuroscience, and the other vectors that constitute integrative law. For information about forthcoming events or about ILI’s “Certification in Integrative Law” program, go to www.integrativelawinstitute.org or write to info@integrativelawinstitute.org.

[2] Collaborative lawyers work outside the court system in interdisciplinary teams that transform how the lawyers participating in them deliver services to clients. See, Pauline H. Tesler, “Informed Choice and Emergent Systems at the Growth Edge of Collaborative Practice,” Family Court Review, Volume 49, Issue 2, pages 239–248, April 2011, available online at http://onlinelibrary.wiley.com/doi/10.1111/fcre.2011.49.issue-2/issuetoc. See, also, Ted Schneyer,The Organized Bar and the Collaborative Law Movement: A Study in Professional Change, 50 Ariz. L. Rev. 289 (2008).

[3] An overview of the third area, facilitating achievement of clients’ goals, will have to wait for another article.

[4] From Lee Ross and Andrew Ward, “Naive Realism: Implications for Social Conflict and Misunderstanding,” Working Paper No. 48, Stanford Center on Conflict and Negotiation (May 1995), accessible athttps://www.law.stanford.edu/program/centers/scicn/papers/naive_realism.pdf, last consulted May 25, 2011.

[5] Many points in this article also apply to the facilitative and transformative ends of the mediation spectrum. The focus here is on how lawyers can provide new styles of advocacy and counsel to clients. Others may want to explore these ideas in the context of practice as a neutral.

[6] Thomas Lewis, Fari Amini, and Richard Lannon, A General Theory of Love (2000).

[7] Interdisciplinary collaborative team practice provides an elegant, skillful solution to the challenge of working with strong emotions, providing licensed mental health professionals in a coaching role who prepare each client for negotiating difficult issues in an emotionally intelligent manner. See, Pauline Tesler and Peggy Thompson, Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move On with Your Life(2006). The team model also provides a context in which unexamined habits of naïve realism in dispute resolution work can be highlighted and altered.

[8] Warren Burger, The State of Justice, A.B.A. J., Apr. 1984, at 62, 66.

[9] Unpublished keynote address at International Academy of Collaborative Professionals annual Forum, Atlanta, Georgia, 2005.

[10] If you are interested in embarking on that retooling process, the place to start is in an extended experiential workshop.

Professor Leonard Riskin Joins Integrative Law Institute Advisory Board

 

Professor Riskin teaching mindful awareness to law students
Professor Riskin teaching mindful awareness to law students

Legal Scholar,  Mediator, and Pioneer in Alternative Dispute Resolution Education Brings Unique Vision to Integrative Law Institute Board

We announce with pleasure that Leonard L. Riskin has joined the Integrative Law Institute Advisory Board.   Riskin, who is the Chesterfield Smith Professor of Law at the University of Florida Levin College of Law and Visiting Professor at Northwestern University School of Law,  brings perspective to the Advisory Board as a distinguished pioneer in teaching conflict resolution, mediation, and interest-based negotiations.

Leonard Riskin was among the first scholars to focus on the importance of self-reflective awareness practices for lawyers.  He began teaching meditation practice for lawyers in the early 1980’s, and continues to be a leader in the growing movement to bring mindfulness practice into law school education. At the University of Florida, Riskin directs the Initiative on Mindfulness in Law and Dispute Resolution, and is a Senior Fellow in the Center for the Study of Dispute Resolution.

Early in his career as an academician, Riskin  observed a “huge amount of suffering among law students, lawyers and clients,” and recognized mediation “as a way to reduce unnecessary adversarialism and suffering.” Throughout his career, he has worked to bring this perspective into mainstream law school curricula.  Riskin has won recognition from the CPR Institute for Dispute Resolution for his curricular innovation and from the American Bar Association’s Section of Dispute Resolution, which conferred on  Riskin its award for Outstanding Scholarly Work.

His research and writing have addressed a wide range of topics, from  decision-making in mediation, to the impact of mindfulness meditation on law students, lawyers and clients, to the role of emotions in negotiation. Riskin authored the law school textbook  Dispute Resolution and Lawyers.  He has taught courses on  “Conflict Management in Legal Practice” and “Advanced Dispute Resolution,” and continuing education programs for practicing lawyers on  mindfulness meditation as a means for lawyers to manage stress, handle conflict more effectively, and get more satisfaction out of their work.

Riskin is one of the first legal scholars to appreciate that lawyers and negotiators resolve conflicts not only with legal training and experience, but with the “quality of their presence.” He teaches that the fruits of mindful awareness practices are “contagious and [affect] other people’s consciousness and state of mind.” Riskin’s groundbreaking work to bring humanism into law practice enriches ILI’s focus on body-mind awareness practices as one of the core vectors of integrative law.

In these video clips, Leonard Riskin describes his philosophy and provides a window on  his influential work:

http://www.youtube.com/watch?v=gVUoziwfSQ4&noredirect=1

http://www.youtube.com/watch?v=cngB-JcIMoM

https://www.youtube.com/watch?v=Kd4511KCOIM

Conscious Contracting: Integrative Law for Transactional Lawyers

Lawyers in the U.S. are working on creative models for bringing transactional lawyers into the Integrative Law movement. They ask:  what if contract negotiations began with a discussion of the parties’ shared vision, mission, and values?  And what if those principles were tied in the contract itself to specific ways of addressing conflicts  that expressed those principles?  successful negotiation

Linda Alvarez, a California lawyer, sees the contract as a private, self-determined  justice system within the public justice system.  She invites lawyers to see our job as helping our clients create values-driven deals that include a framework for normalizing and addressing constructively the  disagreements and disputes that may arise downstream.

This is Integrative Law for transactional lawyers and in-house counsel, and it provides an important “preventive law” dimension to our work as humanistic conflict resolution professionals.

From Linda’s website:

“Design your own systems

Every contractual relationship is, in essence, a self-contained legal system.  The terms of the contract are the laws that the parties write for themselves and the dispute resolution provisions in their contract – whether written or unwritten – determine the justice system and process that will be used when the parties need to manage change or resolve disputes between themselves.

Their contract is a private system within a public system.  Our larger, so-called legal-justice system encompasses and impacts the workability of the private contractual system; but this larger context does not mean that the parties to a contract are powerless – unless they choose to be so.  It is, in fact, quite possible for the parties to retain a good deal of their power of self-determination and self-governance by conscious, enlightened design.

Using knowledge of the broader system, the parties can create their own structural foundations and frameworks.  Instead of cobbling together a structure from bits and pieces borrowed from or imposed by cumbersome convention and habit, they can design and implement their ideal private governance system.  Rather than using their contract as a weapons cache stockpiled in case of dispute, the parties can write a document that serves as a guide and support to their own, intentional system and structure within and with the support of the greater, conventional frame and framework.”

Integrative Law Received Enthusiastically in South Africa

Teaching Integrative Law to South African lawyers

ILI Director Pauline Tesler visited Cape Town and Johannesburg, South Africa in April at the invitation of the Centre for Integrative Law, to present workshops on “Law and the Human Brain: Neuro-Literacy 101 for Lawyers, Mediators, and Judicial Officers.”

Participants in the workshops came from a broad swath of the legal profession, including a large contingent from South Africa’s government-funded Legal Aid Society as well as lawyers from Africa’s largest international commercial law firm, Edward Nathan Sonnenbergs.

Representative comments about the workshops:

“It is an amazing eye-opener. A must attend for every lawyer.”          Bishop Kgagara, Pretoria, South Africa

“What a refreshingly new and dynamic insight into our staid profession. You are to be congratulated for having the courage of your convictions in introducing Pauline to our fraternity here. Her presentation skills and enthusiasm for her groundbreaking approach are remarkable and very infectious.” ~ Nick Muller, Director – Dispute Resolution, Cliffe Dekker Hofmeyr Inc., South Africa, 2013 

“Every lawyer should attend this seminar.  It is that simple.  What Pauline Tesler has done is condense much of the latest findings of neuroscience in a format which is both content-rich and palatable. Attending this seminar will not only give you another set of perspectives through which to view the entire legal profession, but a remarkable insight into human behaviour and how law is practiced in this context.” Wendy Ward, lawyer, South Africa, 2013

 A brilliant presentation. Absolutely amazing and remarkable! Very interesting and informative.”          Hajra Siddi Ganie, Mount Edgecombe, South Africa

“Of vital importance- should be taught and required legal studies and at university!”          Mariette Kruger, Johannesburg, South Africa

 

NeuroLiteracy 101: Moving from Dispute Resolution to Conflict Resolution

Why should lawyers and other dispute resolution professionals become neuro-literate?  On January 12, 2013, lawyers, mediators, and colleagues from allied professions (financial planning, psychology, and family counseling) will join me in San Francisco for an all-day workshop, called

Law Practice and the Human Brain: 

Neuro-Literacy 101 for Lawyers, Mediators, and Judges

Moving from Dispute Resolution to Conflict Resolution

Join us at that workshop for some fascinating new tools and perspectives that begin to answer the question.

Underlying everything I teach, including this January workshop, is my profound belief that providing  legal counsel that genuinely helps our clients with personal disputes to reach  deep, durable resolution requires us legal professionals to go back to the roots of what we believe our job description is and why we believe that.

For more than twenty years I represented clients in personal dispute resolution the hardball way, taking  domestic relations and other matters through trial and appellate courts.  For nearly as many years after that  I’ve been a leader in the movement that has produced–among other important changes–promulgation of the Uniform Collaborative Law Act.  What I know in my bones is that our clients whose legal disputes grow out of fractured human relationships need from their lawyers a vision, a sense of responsibility, and a practical toolbox that law schools don’t teach us and that we can’t learn in court.

If clients make appointments with a litigator, they tend to get litigation, and if it’s an appointment with a mediator, they tend to get mediation.  Ethical practitioners make time to explain the breadth of legal dispute resolution process choices available to clients, but we cannot help bringing our own preferences and cognitive biases into the conversation, much as we may strive to keep the focus on the client. I’ve come to be somewhat skeptical of the very idea of neutrality, given the sneaky persistence of cognitive biases and other quirks of how our brains are wired, however good our intentions may be.

What’s a conscientious lawyer or mediator to do about this?  There isn’t a short and sweet “magic bullet,” but there is an answer: we can begin the process of understanding the difference between legal dispute resolution and human conflict resolution from a dynamic systems perspective. 

That perspective begins with the reality that every new case calls into being a unique  system consisting of the clients and every one of their professional helpers, as well as everyone else they consult (family members, friends, therapists, colleagues, online chat room and forum acquaintances, and more–the “Greek Chorus”).  Every member of that system alters the narrative of the conflict, and dynamically shifts the process of resolution, with every communication and every interaction.

We lawyers tend to look at our clients’ problems as legal issues, and as entirely theirs.  We  implicitly see ourselves as a constant, always rational and always focused on getting the job done in ways that do not require much inner work, personal reflection, or conscious awareness of ourselves as members of that dynamic system. We imagine that our job is exclusively to be persuasive, analytic and efficient, and to keep the focus solely on settling the legal issues.  Anything the clients do that impedes that progress interferes with us doing the job we were hired for.

It’s just plain not so. We are trained to litigate or settle legal disputes, but our clients often  come to us embroiled in far more complex human conflicts.  Just because the client made an appointment with a lawyer doesn’t mean that what we learned in law school is what they need most from us.  Legal disputes can be resolved by pieces of paper called settlement agreements and judgments, but human conflicts need to be healed.

Here’s what I believe, and what we teach in programs offered by the Integrative Law Institute at Commonweal:

  • We lawyers alter the possibilities for process and outcome every time we interact with anyone in the system.
  • The less consciously  aware we are of ourselves–including our capacities, our habits, our beliefs, our emotions, and more– as a force that alters the potentialities of the  unique system in ways operating below our rational awareness and intentions, the less able we are to marshal our own full potential as conflict resolution professionals.
  • The less aware we are of ourselves as conscious participants in a dynamic conflict resolution system, the less able we are to maximize the conditions that might lead to genuinely positive and meaningful outcomes for our clients–including, but not limited to settling the legal issues we abstract from their stories.

NeuroLiteracy 101 is ILI’s introductory workshop.  It’s purpose is introducing this new perspective  and this new toolbox to lawyers and others who have learned to prioritize reason to the detriment of appreciating how the interactions of all parts of our complex human brains affect our work.

Participants can receive 6 hours of California MCLE credit.  CEU’s for mental health professionals will be available for a small administrative fee.

Interested?  Join us in San Francisco on January 12th. 

Earlybird discounts have been extended to December 5thRegister now!

 

Announcing ILI’s Certification in Integrative Lawyering

ILI has an ambitious plan: to offer a Certification in Integrative Lawyering, in connection with comprehensive training in all the vectors that together constitute Integrative Law.

Law Practice and the Human Brain:  NeuroLiteracy 101 is our first 6-hour program, taking place on January 12, 2013 in San Francisco’s financial district. Click here for a full description:

Law Practice and the Human Brain: NeuroLiteracy 101 Workshop Flyer

It carries 6 hours of California MCLE and Certified Family Law Specialist credit, including 1 hour of ethics, and 6 hours of “psychological and counseling aspects of family law” credit.  You can register for it here.  Sign up now to qualify for early enrollment and group discounts.

This workshop  will be followed later in 2013 with a three-day intensive program that introduces all the Integrative Law vectors. (Click here for a “work in progress” chart:   Integrative Law Vectors.) The three-day intensive program also includes self-reflective experiential work in body-mind practices that support deep conflict resolution work, strategic planning for moving from where you are now to a values-based integrative law or mediation practice, and training in use of the web and social media to communicate the value of your work to prospective clients. The NeuroLiteracy workshop and the three-day intensive program constitute the core educational elements for certification in Integrative Lawyering.

ILI plans to partner with a select group of organizations and trainers whose work connects deeply with ILI’s mission. Courses offered by our partners will satisfy additional elements of ILI’s continuing education requirements for certification in Integrative Lawyering. ILI’s partners will provide certification candidates an exceptionally broad and deep range of high quality educational programs relevant to Integrative Law.  We are proud to announce in this connection our  partnership with The Greater Good Science Center, at the University of California-Berkeley.  The Center offers continuing education and public programs in positive psychology, many of which will count for credit toward certification in Integrative Lawyering.  Watch this blog for an announcement about their March program, “Mindfulness and Compassion.”

Please let ILI know your thoughts about our certification program, and make suggestions about possible partnering relationships. We’d love to hear from you.

Alert for Conflict Resolution Professionals: Child Custody Orders May Be Harming Adult Capacity to Love

 

 

Adversarial lawyers  who jockey for position when litigating custody issues involving young children often treat custodial time as if it were a bottom line numbers  issue like support and asset division. This goes to jaw-dropping extremes sometimes–unmarried fathers who have never had a functioning relationship with the mother but who insist on being present at the birth and on having bottled breast milk so that they can claim equal time with infants, treating the baby’s hours as a divisible commodity like a loaf of bread.

More sophisticated divorce lawyers develop custody arguments focusing on who is or is not the primary parent, and how much time the young child can  handle away from that attachment figure without experiencing misery.  The focus here is on the child’s immediate subjective experience of grieving the absent parent and how long the child is able from a developmental perspective to hold onto the sense of relationship when not actually with that parent.

But if we unpack those arguments, at bottom we see that they are not exactly about what’s best for the child.  A balancing test is often going on, implicitly or explicitly, between an apparent attachment relationship that’s central to the child’s existence right now and the wish of the other parent during a divorce or other relationship fracture  to form such a relationship with the young child where it doesn’t already exist.

It’s said that over time the child benefits from having a close relationship with both parents (or nowadays sometimes three, four, or more parent figures). And that’s probably true, if we mean close relationships within a system of caring adults who can put aside the resentments attendant upon divorce to focus on the kids.   But when we are looking at custody litigation from the perspective of young children—infants, toddlers, children below school age—from this point of view judicial orders prescribing access to children within a frame of entirely dysfunctional adult relationships looks to me more and more like social engineering on the part of courts.   Judges are meddling in matters fraught with deep psycho-biological consequences when they attempt to create  parent-child relationships that do  not already exist.  And, in the hostile environment of  adversarial litigation they must do it with a meat cleaver rather than a scalpel.

The stakes are enormous: re-engineering existing attachment relationships by judicial fiat impacts not only the child’s immediate, short term subjective and objective well-being, but also the development of personality and the emotional timbre of adult intimate relationships–perhaps even the capacity to sustain intimate relationships at all.

Here is an area where the engagement of a fully-staffed, effective collaborative team (two lawyers, two coaches, and a child specialist) offers potentially life-changing possibilities for children as well as parents. Helping both parents keep the focus on building a functional restructured parenting relationship goes far beyond negotiating the timesharing details of a written parenting plan.  These teams build in dispassionate child development information (from the child specialist) that the two ally-coaches can help highly anxious and angry divorcing parents to integrate and act upon together for the benefit of the child.

Put another way:  if it’s important for young children to build intimate connections with both parents, then it’s really important for divorce lawyers to educate their clients about the unparalleled resources a good collaborative team can offer parents in service of helping them sustain a healthy parenting system after divorce that nourishes their child.

If you want to know more about how attachment theory is integral to the formation of our adult personalities, here are two outstanding books:

A General Theory of Love, by Thomas B. Lewis, M.D.    Tom and I co-trained at the Straus Dispute Resolution Institute (Pepperdine Law School) for several years and the Neuro-Resolution courses I offer now are infused with what I learned from Tom.

Becoming Attached: First Relationships and How They Shape our Capacity to Love, by Robert Karen.  This accessible but serious book pulls together and explains the implications of a broad swath of research about the workings of attachment  in infancy,  childhood, and adult life:

 

To learn about how interdisciplinary Collaborative Divorce teams work with children and parents during and after a divorce judgment, far beyond merely dividing up the child’s time between the parents,  read my book: 

Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on with Your Life

ILI is looking for a volunteer or intern

Help the Integrative Law Institute Transform Law Into a Humanistic Profession

The Integrative Law Institute is looking for a college student or recent graduate who would like to build a strong resume by volunteering with ILI as it launches its programs to teach lawyers humanistic, integrative conflict resolution skills that really help clients solve problems so that they stay solved.

Retaining a lawyer can be as anxiety-inducing as going to the dentist or signing into a hospital. The fears are realistic: lawyers often quite unintentionally cause serious harm to human relationships at the same time that they win legal victories for their clients. ILI means to bring the job definition of a lawyer into the 21st Century by teaching practicing lawyers a more humanistic way of working with people whose legal issues arise out of fractured human relationships.

We are in fund-raising mode and will be offering our first continuing education programs in the fall of 2012. ILI is on the leadership crest of profound change within the legal profession. If you want to make a real difference and have about ten hours a week to work with us on social networking and fundraising, we will return the favor by giving our intern or volunteer a strong reference and networking assistance in  job search efforts.

Potential volunteer/interns should have:

  • strong computer, web and social networking skills
  • fluency in written and oral communications
  • a confident, poised manner on the telephone
  • intellectual curiosity and a sense of humor
  • interest in law and/or conflict resolution and/or social change
  • a creative, original problem solving approach
  • at least ten hours a week to contribute to ILI work
  • high standards for accuracy, responsibility, follow-through
  • some background in psychology or communications is helpful but not essential

ILI cannot pay a salary or its equivalent but can provide a small stipend to defray expenses.

Work can be done at our office in Mill Valley, CA or at your own computer.

How to apply

Email to phtesler@integrativelawinstitute.org, explaining why you would like to do this job and what you have to bring to this endeavor. If you have a resume, please include it.