The Mindfulness Memo

Question Presented

Whether the objective standard applied to the “Meeting of the Minds” condition for a binding contract is the only manner by which we can some to know each other, find common ground, and perhaps even reach agreement?

Answer

No. As we learn more about social networks residing within the brain’s neural architecture and more deeply contemplate the ways we interact with one another, we are learning that there is more to a “meeting of the minds” than case law suggests as a condition for a binding contract.

Discussion

Meeting of the Minds

In the law, a “meeting of the minds” is necessary to establish a binding contract. While it would be helpful if two parties could come to truly know each other’s minds, this is not the legal standard.

Justice Oliver Wendell Holmes noted that “[t]he making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs — not on the parties' having meant the same thing but on their having said the same thing."

But in light of recent neuroscience findings, we now appreciate that within the social landscape of the practice of law, our personal lives, and even the contracts entered into by our clients, a meeting of the minds, in fact, is better understood as two minds sharing one intention.

Have you ever observed a juror yawn and then yawned yourself? Have you noticed an attorney in court pushing herself out of her seat while opposing counsel does the same? Have you raised your eyebrows when passing a colleague in your office and found them raising their eyebrows? Have you watched a tennis match or boxing event and felt your muscles twitch? Even more, have you wondered how you are able to make sense of someone’s actions – whether it is why they are raising a tennis racket above their head, or pointing their finger at you in a hearing?

Mirror Neurons

Mirror neurons, considered to be one of the most important recent discoveries in neuroscience, may provide an explanation. Experiments have shown that these brain cells fire not only when we perform an action, but also when we observe someone else make the same movement. So, rather than needing to figure these things out, our mirror neurons “simulate” other’s actions along with the intentions and emotions behind those actions.

An important question that arises in this context is how our lack of “awareness” of this mirrored brain activity may unwittingly influence us, and trigger thoughts, feelings, and actions that do not serve our, or our client’s, best interests.

Mindfulness

Mindfulness practices may prove to be an important tool for noticing or sensing the activation of mirror neurons and not becoming sucked in to another’s reactive state of mind or conduct.

So the next time you are working with an overwhelmed client, talking with a frustrated partner, or in a heated negotiation with opposing counsel, bring awareness to the possibility that your brain cells may be resonating in a manner similar to theirs, thus triggering feelings akin to those they are feeling.

Doing so, take a breath with awareness that you are breathing. Feel your belly rise and fall with the next few breaths. Pay attention to thoughts, feelings, and body sensations. As you notice these inner experiences, maintain awareness on breathing, aware that these inner experience are momentary events.

Without this awareness, you might just lose yourself in a similar set of emotions and intentions – and who knows what may follow. With awareness that this phenomena may be taking place, and engaging mindful awareness, you offer yourself a whole new set of insights and choices on what to do next. And, because we all have mirror neurons, you might just be surprised how doing so changes those around us.

If you find mirror neurons of interest, you may enjoy readings this New York Times article, or watching this PBS Video.