How Collaborative Legal Practice Led the Way to Integrative Law

Deep Resolution is More Than a Piece of Paper

Any lawyer who engages seriously in collaborative legal negotiations learns pretty quickly  that traditional legalistic positional bargaining is pointless, because predictions about court results lose their force when neither lawyer can take the matter to court to find out if they are right.  Enter “client centered, interest based negotiations.”  It’s fair to say that no lawyer can succeed in collaborative negotiations without mastery of that approach to settlement of legal disputes.

But clients’ needs during divorce include a lot more than that:  child development information, financial planning, communications skills training, basic financial education, and the many other functions that an integrated interdisciplinary team can provide.  Once mental health and financial professionals join lawyers in collaborative team practice, we are able to facilitate  not just paper settlements, but deep and durable resolution.

Does the interdisciplinary team model represent the pinnacle of collaborative settlement practice? Yes and no.  A skillful, trust-based interdisciplinary  collaborative team is a human system in which dynamic interactions that happen in the moment can transform not only the clients’ problem solving abilities but also the professional team members’ capacities for facilitating constructive conflict resolution.  We grow and learn from our own mistakes with the help of every other member of the system.

It’s a short step from there to appreciating that conflict resolution isn’t just about the clients and their issues.  It’s also, inevitably,  about ourselves.  Any legal negotiation process calls into being a human system consisting of lawyers, their clients, and the other professionals involved in the problem solving team.  Who is the person that enters the room when we ourselves participate in collaborative negotiations?  How deep is our self awareness, our mindfulness of what facilitates resolution and what triggers defensive reactivity?  How much work have we done to deepen our own non-defensive communication skills?  How well do we understand the neuroscience and social psychology of conflict as we humans experience it?

All this and more is the realm of Integrative Law, which isn’t just for family lawyers.  The old categories of family, probate, tort, and contracts law may work for law school courses that teach analytic lawyering skills,  but they don’t match the painful human experiences our clients bring into our law offices.  Our clients  don’t experience a contract dispute; they bring us the financial consequences of a fractured human relationship with a person who last year was a friend and business partner but this year somehow has become an enemy.  They don’t experience a probate dispute; they bring us financial issues growing out of death of a loved one that somehow, magnetically, are pulling the surviving relatives into different corners in an emotion-fueled battle with roots in decades of dysfunctional family history.

We are beginning to understand that lawyers are the designated professional helpers for practical problems that arise when a broad spectrum of deeply emotional human relationships fall apart.  If we lawyers address those profoundly human conflicts using only the rational, argumentative, analytic tools we learned in law school, we may win legal victories but in the process we may do incalculable and avoidable collateral damage to our clients, whose lives may continue in that family, business, or community long after our files are closed.

ILI was founded to teach new understandings and skills from neurobiology, neuro-economics, positive and social psychology, body-mind awareness practices, and much more, to all lawyers who work with clients experiencing the practical problems that arise from ruptures in important human relationships at home, at work, and in the community.

Our continuing education programs for lawyers and their colleagues roll out this fall.  To receive announcements of early enrollment discounts,  join ILI’s mailing list by writing to info@integrativelawinstitute.org

Self-Scan, Stealth Scan, and Conflict Resolution

 

Imitation is basic to human behavior.

It’s long been understood by social psychologists that mimicry is part of who we are as humans.  We copy the body language, gestures, and facial expressions of those around us without meaning to, or even knowing we are doing it.  While doing routine tasks, we copy simple gestures being intentionally primed by a stranger sitting next to us, like touching our face or tapping our foot.  We mimic those we care about  more than those we don’t know, and people we perceive as being like ourselves more than people we perceive as different.  We mimic more when we feel connected to others, or when others are important to us, or when we want to affiliate with others.  Mimicry creates, reflects and strengthens social bonds.

Neuroscientists researching the new frontier of mirror neurons are beginning to understand how and why our brains do this and how central mimicry seems to be to everything that makes us human.  (Check out this stunning Ted talk by neuroscientist V. Ramachandran that will take you on a ten minute intellectual journey about mirror neurons, from functional brain imaging  through the evolution of language and culture to the meeting point of neuroscience and Buddhist thought.)

We can recruit  this core human primate behavior as a tool for deeper, more intentional and effective engagement with conflict resolution practice. For example, according to a review of the literature by a team of social psychologists, in one study, adult participants

 ” who were subtly mimicked by a confederate liked that confederate more and had smoother interactions with that confederate. [And,] the developmental psychology literature documents evidence that infants react more favourably towards adults who imitate them than adults who do not (Meltzoff 1990; Asendorpf et al. 1996). “

Other studies have confirmed that being imitated not only enhances liking and rapport, but also induces more pro-social behavior.  For instance, in one such study experimenters either did or did not mimic subjects, and then “accidentally” dropped several pens on the floor.  Subjects either did or did not get up from their chairs to help pick up the pens.  The subjects who had been imitated “were considerably more helpful than non-imitated participants. This effect was recently replicated with eighteen-month old children.”

Remarkably enough, the pro-social impact of imitation persisted even after the person who did the imitating was no longer present.  If a new experimenter entered the room and dropped pens,  the subjects who had been imitated were still more likely to get up and help the unknown new experimenter.  Even more significantly, another study cited in the review of literature found that the prosocial impact of mimicry could carry over to something as abstract as a donation to a previously unknown charity.

“After the imitation manipulation, participants were left alone in a room, with the money they received for participating and they were asked to fill out a questionnaire on the ‘CliniClowns’ a Dutch charity trying to alleviate the stay in hospital for seriously ill children. There was a sealed collection box in the corner of the room and participants were in the position to anonymously donate or not. Whereas non-mimicked participants on average donated a little under 40 eurocents to the CliniClowns, the donation increased up to almost 80 eurocents for those whose behaviour had been mimicked. ”

 

After conducting experiments of their own, the same social psychologists concluded, “being imitated changes the way we perceive and interact with other people on a fundamental level. After being imitated, we perceive more similarity between objects, feel more similar to others and behave in a more prosocial manner.”

These conclusions carry enormous potential for our conflict resolution work. Integrative Law Institute training programs teach participants a sequence of techniques to recruit the power of mimicry in our work with clients.

  • We begin by teaching participants how to use simple body-mind awareness practices ( the “Self Scan”) to become more self-aware of our own embodied emotions as they express themselves in our muscles and organs.
  • Then, we teach the “Stealth Scan” –a technique for harvesting information about the emotional state of others by mirroring their visible body language and gestures and then doing the Self Scan to see how we ourselves feel when we do it.
  • Finally, we encourage participants to experiment (discreetly!) with intentionally mirroring  the expressions, gestures, and positions of those they interact with at home and at work, and to observe carefully any perceived changes in the quality of relationship and communications.

As humans, no matter how intelligent or professionally detached, we cannot avoid mimicry; it’s part of how we understand other humans in dyad and small group interactions, part of how we know who to trust, who to avoid, who presents a danger.  It happens whether we are aware of the phenomenon or not.

But awareness is far more useful  than ignorance. If we remain unaware, we may be broadcasting our own anxiety in a way that infects others, or picking it up from others, or  exhibiting a degree of alliance with our client that may not be especially helpful to the negotiating process.

Once we become more fluent in recruiting the power of  conscious  mimicry, we can use our evolutionary endowment to help create an environment of trust and pro-social behavior in the negotiating room–an environment that can serve the best interests of all parties.

The study referred to in this post is: Rick van Barren, Loes Janssen, Tanya Chartrand, and Ap Dijksterhuis,Rick van Barren, Loes Janssen, Tanya Chartrand, and Ap Dijksterhuis, Where is the love? The social aspects of mimicry, Phil. Trans. R. Soc. B 27 August 2009 vol. 364 no. 1528 2381-2389 .

 

 

 

 

 

Stories: the Power of Narrative in Conflict Resolution

We  learn in law school that the best way to achieve a great settlement is to prepare vigorously for trial,  building a powerful legal argument emphasizing facts that fit our theory of the case, while challenging the significance of those that harm us.

But what if we are committed to interest-based negotiations,  in which the parties agree  to work only toward settlement, without threats of taking it to the judge?  Collaborative law and some mediation models are based on this premise. Competing predictions about which lawyer has the more powerful legal argument to present to Judge Jones don’t mean much  if the agreed pathway to settlement is finding solutions that both parties will accept as good enough.

So, after we hang up positional legal argumentation alongside our other weapons outside the negotiating room door, what tools remain to help us guide our clients toward “yes”?

Consider storytelling as part of your settlement toolbox.  The most skillful trial advocates have always used narratives in presenting their cases to juries,  because of the singular power of stories to persuade.  Social psychologists are now beginning to unravel the mechanisms by which  stories exert such power, as compared to logical argumentation.

It’s pretty much a truism in the world of neuroscience and cognitive/social psychology that our emotions drive our decisions and choices, and that we often use our rational faculties after the fact to justify decisions that our limbic brains made in an instant without any conscious thought.  Rhetorical argumentation–the marshalling of facts and logical reasoning to push for a given outcome or viewpoint–appeals to the rational part of our brain, but for many if not most of the decisions that our disputing clients will be called upon to make during settlement negotiations, emotion has already driven the train into the station before reason ever registers  the name of the destination.

Enter storytelling.  A recent journal article, Narrative Persuasion in Legal Settings: What’s the Story?,  makes the case that through stories, we can speak directly to the limbic or emotional brain of listeners and trigger emotional connections that may powerfully influence opinions and decisions,  and may even change pre-existing contrary beliefs..

“…studies have shown that narratives influence beliefs and attitudes in part by encouraging empathetic and emotional connections with story characters (Heath, Bell, & Sternberg, 2001; Oatley, 1999).  The power of narratives to influence emotion relates to basic research within social psychology that shows that opinions and beliefs typically have both emotional and rational bases (Chaiken, Pomerantz, & Giner-Sorolla, 1994; Crites, Fabrigar, & Petty, 1994).  Some opinions and beliefs are primarily emotional in nature (e.g., ice cream), whereas others are primarily rational (e.g., vacuum cleaners).  Further research has demonstrated that it is often difficult to influence attitudes that are held emotionally using rationalistic, rhetorical arguments (e.g., Fabrigar & Petty, 1999).  Narratives then, appear to be uniquely suited to changing opinions and beliefs which are held emotionally, and which may be resistant to other forms of persuasion.” (Emphasis added.)

The psychologist authors go on to explain that when we employ the rational tools of argumentative persuasion, the rational brain of the listener who holds another position responds with internal skepticism and counter-argument.  A powerful story well told, however, can take the listener into a world of imaginative emotional resonance  entirely beyond the reach of the skeptical, argumentative rational brain.  (Green & Brock, 2000; Slater & Rouner, 2002).

While  our work as lawyers will always  be reason-based at its core, and while techniques and skills that help our clients return to rational problem-solving after emotional meltdowns will always be vital to our work, stories unfold in a deeper  realm where the emotions that drive our clients’ conflicts reside.  Weaving narratives into  the settlement process has the potential to unlock openness to new ideas in situations where rational arguments may simply cause parties to dig their heels in even more deeply.

 

Integrative Law and the Journey toward the Self

An intriguing dialogue began this week on the IACP LinkedIn group, about the work of the Integrative Law Institute, inspired by my posts earlier in the week re Neuro-Poetry.  A slightly edited excerpt is pasted below–a dialogue between a psychotherapist from Bath, England, and myself:

Chris Mills • Pauline, I could engage with you for hours about this! I find your mission to reclaim law as a healing profession inspiring and brave, and your CPD trainings look excellent.

Speaking as a psychotherapist, it seems to me that collaboration and mediation in their range of different approaches are essentially forms of counselling, and are most usefully seen as such. That is, they are all attempts to reach the point of relief that comes when the true meaning of a conflict can be brought to awareness for those immersed in it. In every case the professional acts as facilitator of that greater awareness, in the interests of accessing the fullest range of information possible for the clients to build their vision, plans and decisions on.

I work alongside some brilliant lawyers, both as fellow team member in interdisciplinary cases and as individual supervisor to them. In another life they would have made excellent therapists! I do have some sympathy, though, for those who have been in the profession a long time, because what is now being asked of them is so utterly different from what they trained for. While having been the sole gatekeepers of divorce until now, I think it can be hard for them to embrace a new way that carries with it the inevitability of their feeling de-skilled, out of their depth and on the back foot.

As the Integrative Law Institute (another title I love, being an integrative psychotherapist!), I wonder whether you would agree that primary training, rather than CPD, is what is most needed for lawyers. An essential element of this would be working on themselves at the depth that face-to-face DR requires them to work with their clients. Bearing in mind the ancient adage ‘Physician heal thyself,’ this really would locate law as a healing profession – as a specialist form of psychological intervention with a focus on creating facilitative legal decisions, but not where one healthy group is doing something to or for the other unhealthy one, but rather where the endeavour is a shared human experience that embraces everyone’s not-knowing and vulnerability. This would make the work no different from any other type of solution-focused counselling. I think this would give us more confident lawyers, rather than lawyers who – as a colleague rather beautifully put it the other day – anxiously reach for the flipchart and pens every time a client shouts or bursts into tears. And I think it would dignify the profession of family law in a way that the increasingly emotionally literate next generation of clients will demand.

It looks to me like the ILI would be perfectly placed to deliver this.

Pauline Tesler • We could explore your thoughts at great length, Chris, and I believe we’d find agreement on a good deal of what you suggest, in terms of end point aspirations, though I might not exactly agree about the lawyer’s role in deep resolution ultimately being like that of a mental health counselor. (There is a long and respectable history, at least over on this side of the pond, of calling lawyers “counselors at law”, which I do think captures a part of what the new Integrative Lawyer’s job description would entail.)

What I have found over the fifteen or so years that I’ve been training collaborative and other  lawyers and interdisciplinary  teams is that the access points for lawyers are not the same as the access points for therapists, nor is the journey quite the same. Or, to put it another way, one could put out a sign offering what you suggest, but I’m not sure how many lawyers who aren’t already on that path would sign up when it’s packaged in those terms, which are terms more resonant for MHP’s than for most lawyers.

Put yet another way, I find that for many if not most lawyers, the access point for the journey inward is the neocortex, and the techniques for inspiring deep curiosity about the self are quite different from those for MHP’s, who after all self-select into a profession marked by that curiosity.

Another way of saying it was brought home in the three-day workshop on use of story I attended recently presented by Rachel Naomi Remen, M.D., for members of the healing professions (psychotherapist, surgeons, nurses, veterinarians,etc.). At one point she led an exercise in which participants were asked to recall their earliest experience of caring deeply about ministering to/healing another creature that was injured or in pain. Then she asked for a show of hands working back from age twenty to indicate the earliest age at which the people had such an experience. Everyone in the room (except me) had vivid early memories around age 2-3-4 of acting from empathy to feel impelled to care for the injured creature. She described leading that same exercise for a room full of law students, lawyers, and professors, along with Jack Kornfield, a Vipassana Buddhist teacher. Not one single person raised their hand at any point. She was a bit stymied about how to continue, until Jack whispered in her ear, “try the same exercise but ask about fairness/injustice instead of healing,” and when she did, it worked exactly as “healing” had worked with healthcare professionals: most of the lawyers, professors, and law students had such experiences at a very young age.

I think you’d find similar differences if you looked at Meyers-Briggs (lawyers being heavily weighted toward INTJ), or at the Enneagram (lots of 3’s). The particular gifts and also the particular challenges are different for lawyers than for the other two collaborative professions, and that’s why I believe only a relatively small subset outside the collaborative (and transformative mediation) community show up for workshops expressly offering tools and avenues for intimate connection with self. Hence,  I’m putting my energies into the Integrative Law Institute: I believe I’ve got some insights about how to bring lawyers into the room who might not show up for other programs, and how to break through persona once they are there. I’ve built up a kind of credibility over my years of law practice that is extremely useful working with my colleagues who do not yet know what it is they are looking for.

 

 

Neuro-Poetry

A divorce lawyer who attended my Practical Neuro-Literacy program in New Hampshire earlier this month just sent me 58–yes, 58–short poems inspired by the presentation. Raymond Foss has given me permission to post them, and I’ll start with the one pasted below.

The title –“When a Big Dog Attacks”– refers to a slide–the head of a ferocious, slavering black dog–that I use to illustrate the power of implicit memory and of the amygdala, a very old area  of the emotional (limbic) brain that activates immediate, powerful responses such as fear, outrage, and grief when emotion-saturated memory patterns are triggered.

That slide, and the accompanying “amygdala hijack” segment of the program,  inspired this poem:

WHEN A BIG DOG ATTACKS

I have seen them, losing control

their response engrained

the stimuli perhaps hidden

from my sight, subtle

but instant, visceral, reacting

as when a big dog attacks

seeing the manifestation

body language, reason

changed in an instant

the programmed reactions

deep within their brains

something instinctive

primal, primitive

learned long before

when the big dog attacks

the same in the court

in settlement, resolution

on cue devolving,

by a word, an action,

a mere twitch of a micro-muscle

back into survival, not thinking

losing perspective, losing control

losing their case

 Copyright June 2012, Raymond Foss.

 

PRACTICAL NEURO-LITERACY: THE VIDEOS

Nearly 130 New Hampshire lawyers, mental health and financial professionals gathered in Concord NY on June 14th to accompany me on an introductory tour of the new world of  applied neuro-literacy.

The Family Law Section of the State Bar co-sponsored the event with the State Bar itself.  Expectations that mainly divorce lawyers would attend were belied by the diverse group who attended, including at least one retired judge, a FINRA securities arbitrator, a state legislative lobbyist, some CPA’s, and a cluster of psychotherapists.

As always, I tailored the presentation in real time to match the interests of the group that showed up, taking a vote from time to time as to whether we should use remaining time for experiential exercises, discussion, roleplay, or more amazing video clips illustrating mirror neurons in action, irrational neuro-economic decision making, mammalian primate trust behavior, and much  more.

This group was unusually clear in its preference for more video, and so I was able to show them a video clip of a popular TV show based on the Prisoners’ Dilemma game that made them gasp, a clip of monkeys demonstrating cooperation and trust, another showing that monkeys and even dogs are hardwired to insist on fairness as well as economic self interest, and some mind-boggling video clips showing attention blindness and behavior priming.

I love teaching this material and I’m constantly updating the multimedia resources I include in trainings, workshops, and speeches.  Contact me if you’d like to bring a similar event to your community.

Forming Optimistic “Memories of the Future”

A new study reported in Scientific American suggests that active imagining of happy future scenarios creates more lasting memories than imagining gloomy futures.

In the Harvard research study, participants were guided to imagine a wide array of possible future scenarios tailored to their own circumstances, and then tested over intervals to determine how long memories of those imagined futures persisted.

Researchers discovered that short-term retention of happy and unhappy scenarios was identical. One day later, however, the details of negative simulations were much more difficult to recall than the details of positive or neutral simulations.

“These findings are consistent with what is known about negative memories for actual past events, which also tend to fade more rapidly than positive ones. Szpu­nar and his colleagues hypothesize that the emotion associated with a future simulation is the glue that binds together the details of the scenario in memory. As the negative emotion dissipates, so, too, does the integrity of the remembered future. So the negative versions of the future fade away with time, and the positive versions endure—leaving, on balance, an overly rosy vision of what’s to come. But that may not be a bad thing. People who suffer from depression and other mood disorders tend to not only ruminate on negative events from the past but also spin out gloomy scenarios for the future.”

Lawyers work with people in conflict who often live with situational depression. We are very familiar with the tendency of such clients to ruminate about gloomy future prospects. This study provides another strand of evidence for the importance of divorce coaching by mental health professionals trained in narrative conflict resolution modalities. Coaches help clients imagine positive futures during periods of unwanted, sometimes chaotic conflict-related change. The conclusions of this study suggest that working with coaches on restorying may help clients to create lasting positive “memories” that have more staying power than the anxious and fear-ridden scenarios produced during depressed rumination.

Another reason why lawyers working with clients to resolve personal conflicts can benefit from team service delivery that includes skilled ally-coaches.

Hardwired for Altruism?

Social Darwinism seems to be dying the “death of a thousand cuts,” as more and more research confirms our primate nature includes a strong dose of hardwired altruism and other “pro-social” emotions.

For instance:  in a 2011 study, female chimpanzees were offered a choice between two tokens of different colors.  The “selfish”  token gave the chimp a reward.   The “generous” token gave the same reward but also bestowed it on an observing, unrelated female chimp who might not even have been looking as the choice was made.  The female chimps more often chose the pro-social token, whether or not the observer showed any interest.  In fact, efforts by the observer to pressure the “decider” discouraged generosity.

Interesting for us conflict resolution professionals to ponder this experiment as we devise techniques for encouraging reciprocal generosity at the negotiating table.

The article is:

Spontaneous Pro-Social Choice by Chimpanzees”

Horner, V.J., Cartera, D., Suchack, M., de Waal, F.B.M., PNAS, Vol. 108 (33), August 2011, 13847–13851.

A Conversation About ILI with carlMichael Rossi

Listen to a conversation between me and carlMichael Rossi in which I describe the lawyer’s role in conflict resolution from a human systems perspective, and  introduce the new Integrative Law Institute at Commonweal.  carlMichael is the creator of the online magazine, The World of Collaborative Practice.

http://theworldofcollaborativepractice.com/?p=124

Welcome to the Integrative Law Institute at Commonweal

This page is under construction.

Stay tuned for:

  • regular updates about frontline research discoveries in neuroscience, positive and behavioral psychology, neuroscience, and much more…
  • translated into practical tools that lawyers, mediators, and others in the legal  field can use immediately to deepen our conflict resolution work with clients,
  • a calendar of workshops and other events teaching legal professionals how to address human conflicts constructively, not solely as legal problems, but across the many dimensions in which conflict impacts the lives of people experiencing it;
  • weekend workshops for lawyers who want to reclaim professional vision and satisfaction;
  • and news about the Integrative Law Institute’s MCLE courses that satisfy state continuing education requirements and  can lead to certification as an Integrative Lawyer.