Pauline Tesler, Family Lawyer Magazine: April 22, 2013
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.” 
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. 
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. 
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 ) 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.  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. 
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?”  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.  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.  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.
 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 email@example.com.
 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).
 An overview of the third area, facilitating achievement of clients’ goals, will have to wait for another article.
 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.
 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.
 Thomas Lewis, Fari Amini, and Richard Lannon, A General Theory of Love (2000).
 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.
 Warren Burger, The State of Justice, A.B.A. J., Apr. 1984, at 62, 66.
 Unpublished keynote address at International Academy of Collaborative Professionals annual Forum, Atlanta, Georgia, 2005.
 If you are interested in embarking on that retooling process, the place to start is in an extended experiential workshop.