The Mindful LawyeR®

Institute for Mindfulness Studies

Mindfulness Memo

To:      You

From:  Institute for Mindfulness Studies

Date:   October 2, 2009

Re:      The Motion to Bifurcate Pain & Suffering

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Question Presented

Whether Pain and Suffering, and the damages associated with them, are irrevocably joined together in the mind and body, or might they be bifurcated to minimize the impact of unpleasant events?

Answer

Pain and suffering are two distinct aspects of the human experience.  They are generally found accompanying one another, like a body and its shadow.  But that connection - the product of a mind conditioned to distract and soothe, as opposed to directly addressing or embracing the unpleasant -  can be illuminated through mindful awareness.  With such illumination, the suffering ebbs and life is experienced more completely in the present moment.

Discussion

To answer this question, we will distinguish the inevitable arising of unpleasant events in life and the law from the ways we choose to relate to them. The direct impact of unpleasant events can be termed "pain" while the counterproductive and even destructive ways we can react to them are termed "suffering." While the law does not generally tease apart the two concepts, i.e., pain and suffering, learning to distinguish between them in your day-to-day life can be a source of insight and relief, and even energy, inspiration and productivity. And, as you'll learn, the insight that enables this distinction is the inner-movement from wanting to wisdom, a topic that will be explored in next month's Mindfulness Memo.

 

Events.  Life is filled with events. They forever follow one after the other. Some are pleasant, such as winning a case or landing a big client. And some are unpleasant, such as looking at your investment statement after another economic downturn or learning that a colleague's office is being downsized. These events, when we resist them, give rise to a host of reactive thoughts, feelings, and actions. Often these reactions take us out of the present moment as we ruminate over the past and fret over the future. Mindfulness practices can help you to attend to the present moment - where the action is.

 

Pain and Suffering.  In the language of mindfulness, when an event transpires that is unpleasant, we refer to it as pain. You know what it's like when you bang your toe (physical pain) or lose a case (emotional pain). Often arising alongside the pain is a derivative experience we can call suffering. Here's the rub: Rather than embrace the pain and bear its unpleasant qualities, we react against them with thoughts and feelings about the experience - and it is these thoughts and feelings that are the source of suffering. For instance, we move all too quickly from the physical pain of banging a toe to asking, "Who left that on the ground? You're so irresponsible. Why do I put up with this?" 

 

Suffering is Optional.  To get a better handle on suffering, consider how you might respond to losing a case. You may explain away the loss by blaming co-counsel, a colleague, the client, or the judge. Maybe you begin to obsess over what went wrong, as a sinking feeling arises and you begin to question your competence or worry about the consequences. Fear envelops you as your thoughts move into the future and anticipate the bleakness it could entail - the client who looks for another attorney, the tarnished reputation, the shame of loss, and on and on. This reaction is termed suffering because it stands apart from the pain. After all, all that happened (painful as it may be) is that you lost a case. Whereas the painful experiences in life come with the territory; suffering is optional. It is a choice.

 

You may ask why we tend to jump to distraction. In part, it's learned. After getting a shot at the doctor's office as children, we were treated to hugs or candy or ice cream. To protect us from a painful experience, we were soothed through distraction. By not being reassured that we could bear the unpleasant, it has become all too natural to simply not want to experience it at all. It is this "not wanting" that turns us away from the experience and toward a distraction - one that carries the illusory promise of dissolving the pain. While this may work occasionally, more often than not it delays - and ultimately exacerbates - the discomfort. Rather sitting with the pain - and noticing the thoughts, feelings and bodily sensations that arise and usually serve as a harbinger for the pain's passing - you turn from it, resisting it, usually at great cost. This approach not only generates more unpleasantness in the long run, but it also reinforces the very neural pathways in the brain that are associated with the tendency to distract. And so the next time a similar situation arises, you are just as quick - or perhaps even quicker - to go down the same road.

 

Consider some of the unpleasant events that have arisen so far in your day. They take myriad form, both professional and personal:  The adversarial phone call that is going to ruin your day; more troubling news of an unstable economy; the tooth-ache that you don't want to deal with because it probably requires a root canal; the car that cut you off in traffic driven by a maniac; poor weather conditions that ruin your plans; endless political deadlock; newspaper reports of death, disease, destruction, and devastation that leave you feeling a sadness and dread over a world that makes little sense. In search of distraction, which can take the form of food, television, social interaction, sleep, and alcohol,among other things, you find yourself whiling away precious moments of your life and opportunities to be productive by procrastinating and day dreaming or surfing the Internet.

 

Motion to Bifurcate Pain & Suffering.  Now take a moment and look back over the list of unpleasant events. Can you tease apart from each description that which is merely an event and that which portends the suffering? Yes, the phone call from opposing counsel may turn out to be painful in some respects, but why suffer the entire day dreading the phone call that may turn out to work in your favor, or which may not occur at all?  Yes, the toothache is painful, but why invite the unnecessary suffering that comes with wondering whether it will require a root canal? Yes, getting cut off may be frightening, but why continue to suffer by analyzing the mental state of the driver who is now blocks away?  Can you see the line between the event - which "just is" (the pain) and the story you create about the event (the suffering)?

 

This intellectual discussion becomes a springboard for transformation through the mindfulness exercise of allowing the moment to be as it just is. As they say, mindfulness is "not what you think."  So, when the unpleasant arises in your life, experiment by doing something out of the ordinary. Here's how. It's the simplest instruction and the most challenging of tasks.

 

Experience the unpleasant event by bringing awareness to your breathing and simply witnessing (without the commentary) what arises. You will observe thoughts, feelings and bodily sensations. This is what is really happening in this moment. Be there for it.

 

In the language of Jurisight, we call this learning to bifurcate pain and suffering. As you practice cultivating mindful awareness, you'll probably find that the unpleasantness arises and passes away -- as is its nature. It is as if you are a mountain and the thoughts, feelings and sensations are clouds passing overhead. Attend to those challenging moments with the stability of a mountain.

 

As you do, you may find that you stop wanting things that have already happened to be different than they are. As the mind stops wanting, wisdom flows. Doing so, you might just learn something. Or, better yet, unlearn something.

 

Legal Resources

Books

Kabat-Zinn, J.  Full Catastrophe Living: Using the Wisdom of Your Body and Mind to Face Stress, Pain, and Illness. (Bantam Dell 2005)

Rogers, S., The Six Minute Solution: A Mindfulness Primer for Lawyers (MLP 2009).

Articles

Riskin, L. The Contemplative Lawyer: On the Potential Contributions of Mindfulness Meditation to Law Students and Lawyers and their Clients, 7 Harvard Negotiation Law Review 1-66 (June 2002)

Mindfulness Memo Archives

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