The Mindfulness Memo

Question Presented

What role might mindfulness play in one’s effectiveness at bringing about a resolution to a conflict, whether engaged as an attorney, mediator, or conflict resolution expert?

Answer

Negotiation and conflict resolution skills are sharpened as you cultivate greater awareness of the thoughts, bodily sensations, and feelings that arise in your mind and body. Law-focused resources that address this fundamental mindfulness inquiry are cited at the end of this memorandum.

One of the insights that can emerge through mindful awareness practice is the role your identity and personal needs may play in the process of conflict resolution. Much of the agitation, intensity, desire, and concern you experience, which may compromise your effectiveness -- your ability to pay keen attention to what is being said, to perceive underlying interests and motivations, to listen skillfully, to speak persuasively, and to imbue the process with a stability and balance that supports a group resolution -- can be attenuated as you bring awareness to these factors. The “Awareness in Lawyering” article by Professor Len Riskin, cited below, discusses ways in which mindfulness can enhance clarity of mind and one’s capacity to be reflective and attuned in negotiation settings.

As you know, negotiation is inherent in human interaction (e.g., driving in traffic, coordinating children’s weekend schedules, on-line shopping, discussing client invoices). It is a rare day, or even several hours, that some form of negotiation has not transpired. A great many of these negotiations take place on the inside -- whether to order dessert, is there enough time to exercise, assessing a pleading’s persuasiveness, deciding whether one would be ore productive after a good night’s sleep or to keep working, and and other work-personal balance questions. Indeed, the negotiation skills we bring to the conference room table, may be very similar to those we bring to the kitchen table.

It can be helpful to realize just how much of ourselves we bring into the negotiations. Without this awareness, it can be all too easy to be influenced by often subtle feelings, needs and biases. With awareness, the impact of these factors, both on one’s personal engagement in the process and their influence on behavior and outcome, are acknowledged and more properly weighted.

The below exercise will aid you in exploring some of the deeper aspects of your own nature in the context of negotiation, especially the role of ego and personal involvement in obtaining desirable outcomes. The insights that emerge, often ineffable, can further enhance your capacity to be present, focused, and less distracted during the work you do, and a host of important interpersonal and group exchanges.

Mindfulness Exercise

Visualization on Life’s Fundamental Negotiations

An audio and a video link to the below visualization appear at the end of this section.

Find a comfortable seated posture. Place your feet on the ground and allow your arms to rest comfortably by your side on or your lap. Close your eyes and bring awareness to your breathing. Follow your breath for a few moments, aware of each inhalation and exhalation, the rise and the fall of the belly. Simply observe your yourself breathing.

Bring to mind a image or sense of yourself in the present. As this sense of yourself forms, bring to mind a challenging dispute or negotiation -- whether in the practice of law or life in general. Recall its substance and how you reacted during the experience. With this experience in mind, bring awareness again to the breath and to breathing, allowing the moment to be just as it is.

Now, visualize or sense yourself going back in time -- to your early twenties, your teens, to the time you were child, a toddler, and finally to an infant.

Breath with awareness of the image or sense of yourself that has arisen for you. Bring to mind your earlier caretaker, perhaps your mother or father, or a nurse. Breathe and experience this earliest of memories -- before you could talk, before you thought very much. You are very present, very deep in the experience of being a baby, of being a newborn.

Now expand awareness to consider what might have been one of your earliest negotiations -- perhaps for your first negotiation. No need to try to think of an answer. Simply be present with your breath as you allow your mind to offer you insight into this earliest of moments -- though sensory experience such as imagery, sound, smell, taste and touch.

Bring awareness to breathing, following five in-breaths and five out-breaths, as you absorb this experience.

Then, sense yourself aging as you crawl and begin to walk, move into adolescence, your teens, your twenties and onward as you age well into the future. You see yourself aging into your sixties, seventies, eighties, until you reach a point in time that is marked by a tired and warn body, and a bed in which you rest. You look around and see your family -- perhaps your partner, much older, and your children, grandchildren, or nephews and nieces, and friends. In this moment, you appreciate that you are soon to leave this life.

You close your eyes, and breathe as you consider your final negotiation -- in whatever form it takes. Again, no need to think of an answer. Aware of breathing, open to whatever arises in this moment.

As imagery, sound or other sensory experiences arise, simply be present and observe what arises in your mind and in your body.

After a few moments, wiggle your fingers and toes and open your eyes. Take a few moments and contemplate this experience. How do you feel? What do you remember? What did you learn about yourself? Write down your experience so that you may reflect on it later, when the memory and insights may begin to dissipate.

Legal Resources

Articles

Riskin, L. Awareness in Lawyering: A Primer on Paying Attention, in The Affective Assistance of Counsel: Practicing law as a Healing Profession, 447-71 (Marjorie Silver, ed., Carolina Academic Press, 2007).

Bringing Peace into the Room: How the Personal Qualities of the Mediator Impact the Process of Conflict Resolution (Daniel Bowling & David Hoffman, eds., Jossey-Bass/Wiley, 2003).

Don Ellinghausen Jr., Venting or Vipassana? Mindfulness Meditation’s Potential for Reducing Anger’s Role in Mediation, 8 Cardozo J. Confl. Resol. 63 (2006).

Books

Gary Friedman & Jack Himmelstein, Challenging Conflict: Mediation Through Understanding (ABA 2008)

Roger Fisher & Daniel Shapiro, Beyond Reason: Using Emotions as You Negotiate (2005).

Courses

In their mediation certification courses, Mel Rubin and Gary Canner, of Mediation Services, Inc., use insightful and humorous group discussions to explore the role of the mediator in the mediation process. Click here to learn more.

In a growing number of courses offered in law schools around the country, professors explore the role of self in the lawyering context, and teach students exercises and techniques to enhance their attention and cultivate greater insight into the ways they might unknowingly inject themselves into their work. Examples include:

UF Law Professor, Len Riskin (Tools of Awareness for Lawyers).

Boalt Law Professor, Charles Halpern (Effective and Sustainable Law
Practice: the Meditative Perspective).

UM Law Professor, Bill Blatt (Emotional Intelligence).

U Conn. Law Professor, Deborah Calloway (Contemplative Lawyering)