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!

 

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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.

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ILI’s Newest Advisory Board Member: Hon. Thelton E. Henderson

ILI is  proud to announce that the Hon. Thelton E. Henderson, Senior Judge of the U.S.District Court for the Northern District of California, has accepted an invitation to join the Integrative Law Institute’s Advisory Board.

Judge Henderson’s judicial career is remarkable. A graduate of the U.C. Berkeley School of Law, Henderson immediately joined Bobby Kennedy’s Justice Department as the only African American member of the Civil Rights Division, during the height of Martin Luther King’s campaign against segregation in Birmingham, Alabama.  After achieving many other “firsts” in both law practice and academia, including a stint as Dean of Students at Stanford University Law School,  he was appointed to the federal bench as the first African American on the District Court for the Northern District of California, and the first African American Chief Judge of that court.

Judge Henderson’s  distinguished career as a federal judge includes rulings on many of the most critical and difficult issues of our time, ranging from halting the slaughter of dolphins by the tuna industry, to striking down California’s controversial anti-affirmative action initiative, to placing the California prison healthcare system under federal receivership during Arnold Schwartznegger’s administration as governor. Thelton Henderson’s career exemplifies hisconviction that the U.S. Constitution is a living document belonging to all of us, and represents the best of the U.S. legal system.

His perspective and vision will contribute greatly to ILI’s mission: reclaiming law as a healing profession.

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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

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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.

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Physical Health May be At Risk When Legal Conflict Resolution Settlements Create “Haves” and “Have Not’s”

I often use Maslow’s Hierarchy of Needs as a tool in my conflict resolution courses and workshops for lawyers.  It posits that before anyone can attend to higher-level needs such as love, belonging, esteem, and realizing dreams, the lower level needs (survival needs like food, shelter, clothing, followed by safety) have to be satisfied.

Maslow’s Hierarchy of Needs

When we negotiate settlement agreements on behalf of clients in relational disputes (e.g. divorce, will contests, small business dissolutions) whose lower-level needs are adequately met by any reasonable measure, it can sometimes be perplexing for lawyers to appreciate the degree to which some  clients focus not on the sufficiency of their own resources but on the gap between what they will end up with as compared to the other party or parties in the dispute.

A recent article in the New Scientist explains how health and relative wealth may be directly linked in unexpected ways.

Thomas McDade, a biological anthropologist at Northwestern University and director of Cells to Society at the Center on Social Disparities and Health at the Institute for Policy Research in Evanston, Illinois, says that additional research [shows]. . .” that even if you have a stable job and a middle-class income, then your health is not as good as that of someone who is in the 1 per cent. There is something more fundamental about social stratification that matters to health and the quality of social relationships.”

The issues of relative poverty are more nuanced than meeting basic needs for food and shelter. A hundred years ago it might have been whether you could afford to eat meat once a week – or have an indoor toilet. Today it might be whether you can afford to mark your child’s birthday with a party, Marmot  [Michael Marmot, an epidemiologist at University College London specialising in the health effects of inequality] says. “It matters because of what it means: can I participate in society?”

The great divide

Relative poverty goes hand in hand with inequality. “What we find is that the bigger the inequalities, income, educational, social, in a whole variety of ways, the bigger the health inequalities,” Marmot says.

The key is that having less than your peers seems to generate stress, at least at the level of large groups. And many studies over decades draw a straight line between stress and disease.

“How does having less relative to your peers undermine health? Study after study identifies the culprit as stress. Not day-to-day fretting, but persistent psychological and physiological reactions to external threats that cannot necessarily be addressed or avoided. Much of this research focuses on those living in impoverished communities, but these associations only diminish by degree as you ascend the economic ranks of a society. “Socioeconomic status, and social stratification in particular, is a very powerful determinant of health – for populations and for individuals,” says McDade.

Toxic stress

Unrelenting stress is toxic because it can turn the body’s defence system against itself. Neuroendocrinologist Bruce McEwen at Rockefeller University in New York says the stress response that evolved to protect us from harm can be hijacked and actually cause harm when the stress never abates. In a normal situation, the introduction of stress causes the body to deliver a boost of energy – by sending a surge of glucose to the muscles – and to increase heart rate, blood pressure and breathing to get oxygen to the muscles in a hurry. At the same time, blood vessels constrict and clotting factors increase – ready to slow bleeding in case you are wounded. These responses are part of a fight-or-flight survival kit, and once the stress has passed, these should subside.

But for people under unremitting stress, this response never quite switches off – leaving sugar levels unregulated, high blood pressure, increased risk of blood clots, depressed sex drive and an immune system buckling under the strain. Prolonged exposure to stress hormones can have other effects as well, including affecting the brain by altering the structure of neurons and their connections, which in turn can influence behaviour and change hormonal processes.”

 

How can we apply these ideas to conflict resolution work?

What applies at the macro level may well apply also at the  level of individuals in their families and communities and in the negotiating room.  These ideas are worth thinking about as a tool for educating parties to a conflict about interests that may live below awareness but nonetheless are in the room affecting the negotiating process.  Surfacing the issue certainly won’t worsen the problem, and may help parties to hear one another more empathically.

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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

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Living and Working in your Full Self: a Very Accessible Mindfulness Tool for Conflict Resolution Professionals

Did you ever get up from your desk after a long day of drafting documents, batting back emails, and talking on the phone with clients and other lawyers,  to discover that you are exhausted in both body and mind, noticing only then how much stress and tension your body is carrying? Sore back, stiff neck,  aching shoulders, weary spirit…..those seem to come with the turf of legal conflict resolution work.  The way I think of this is that I’ve spent another day living in my neocortex. Forgot again to remember that I am a fully embodied human primate with a triune brain that can bring far more than pure reason to the table. Forgot about embodied emotion as a tool and resource. Forgot I even have a body, below my neck. Forgot about how stress diminishes my creativity, my ability to empathize and to harvest valuable cues from interactions with others.

Maybe you do that, too? Here is an idea that I’m finding to be useful: stillnessbuddy.com offers free trials of several different applications that will pop up on your screen for a few seconds at intervals you set, reminding you to stop, breathe deeply, become aware of your body, notice your sense perceptions, let go of specific tension points.  Slightly longer stillness moments prompt with simple mindfulness/awareness exercises for letting go of thoughts and relaxing both body and mind.  If the pop-ups arrive at really inconvenient times,  one click makes them disappear immediately.  

I’m noticing that I like these mindfulness moments most when I least need them, and least when I most need them. That in itself is food for thought.

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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 .

 

 

 

 

 

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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.

 

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