Joe Basta
Twenty- three years ago, mediation author and teacher Leonard Riskin gave a workshop to the Michigan ADR community entitled “Mindfulness in Dispute Resolution and the Law: Dealing With Stress and Enhancing Satisfaction and Performance.” Riskin was attempting to address two problems he then saw in the legal profession: increasing unhappiness among lawyers, manifested in increasing evidence of stress, depression, divorce and burnout, and missed opportunities to better serve our clients whose real interests and needs often suffered in our adversarial system. His suggested solution to these problems was a serious undertaking of a meditation practice called “mindfulness,” designed to enhance our ability to live in the present moment and to deal compassionately with the conflicts our clients presented.
The legal world has changed significantly since Riskin’s workshop, and many would argue not for the better. Five years after Riskin’s talk, in about 2008, the smartphone appeared, and new access to social media exploded. And just a decade after that, we suffered through the social trauma and forced isolation of the pandemic. That isolation in turn gave rise to wholesale use of Zoom as a new way to resolve conflict, bringing its own limitations in how we lawyers communicate with one another and with our clients.
The smartphone, social media, the pandemic, and Zoom have compounded the problems Riskin addressed. Some argue we have become increasingly isolated from one another, addicted to digital devices, shunning eye contact and unable to deal meaningfully with conflict. See for contemporary examples I Gen by Jean Twenge and The Anxious Generation by Jonathan Haidt. If there ever were a time to revisit mindfulness as a tool to improve our lives and those of our clients, this would seem to be it.
Riskin’s initial focus was on lawyer dissatisfaction, found in higher rates of depression and anxiety, divorce, and substance abuse than in other professions. I doubt recent statistics have changed remarkably for the better. The causes of lawyer dissatisfaction are many and varied: a decline in civility and professionalism, fixation on adversarial attitudes, increase in competition, decrease in firm loyalty, and increased focus on money, status, and performance. Crises of meaning and lack of spirituality reported in society generally have infected the legal profession too. Lawyers are prey to the pervasive sense of the isolation and alienation reported among the populace by authors like Twenge and Haidt.
Lawyer unhappiness spills over into client dissatisfaction with our services. What Riskin has called the “Lawyer’s Standard Philosophical Map” requires an adversarial mindset to navigate. While zealous advocacy is an ethical imperative, monomaniacal focus on a zero sum, win-lose mentality leads us to overlook real client interests and needs which an adversarial system cannot fully address. We too often make the basic negotiating mistake of failing to see conflict from the other person’s point of view. We fail to listen carefully to what is really motivating our clients so that we can help them find more lasting solutions to their conflicts.
Riskin’s primary antidote to lawyer unhappiness and consequent depreciation in client service is the practice of mindfulness. Mindfulness is a method of deliberate, moment-to-moment attention (also called Insight Meditation), attributed to the Buddha 2500 years ago in India. Similar forms of meditation are also found in the other major religions of the world although the practice itself is nonsectarian. The idea is to develop present moment, non-judgmental awareness of our thoughts, reactions, and bodily sensations. The purpose is to gain control over the mind so as to live mindfully throughout the day. As Daniel Bowling and David Hoffman put it in Bringing Peace Into The Room: “To listen when we are listening. To walk, when we are walking. To live, when we are living, To mediate when we are mediating. To be fully and actually present, when we are physically present.” Put more crudely, mindfulness is keeping mind and body in the same place at the same time.
Although this method, accomplished initially by simply following the breath, is deceptively simple, it requires a lifetime of practice. Meditation teachers refer to our “monkey mind” as the riot of thoughts which regularly occupy our minds, leaping from thought to thought in response to external stimuli which control us. We begin to believe we are our thoughts. Further, if we are honest with ourselves, we will admit that we usually spend our conversations with others, not concentrating on what they are saying, but ruminating about yesterday, thinking of tomorrow, or planning what to say next. Emotional or angry outbursts trigger responses in kind. Rarely do we mentally step back to deeply listen to our clients so that we can bring clear, nonreactive, thoughtful analysis to bear.
Riskin was not alone in advocating mindfulness. He was part of a larger movement begun over two decades ago which had then spread to a handful of law firms and law schools as well as businesses throughout the country. Today, upwards of 40 law schools, places like the University of Michigan, Georgetown, U Cal Berkeley, and Northwestern, offer some type of mindfulness training as part of their curricula. Riskin has been joined by many others in the legal professorship who advocate the practice of mindfulness, people like Brian Pappas at the University of North Dakota, Scott Rodgers at Miami University, and Rhonda V. Magee at the University of San Francisco.
The growth of mindfulness practice is evidence of its utility. There is a reason meditation practice has thrived for over 2000 years. Students, teachers, and lawyers report increased happiness, relief of stress and anxiety, development of self-awareness, empathy, compassion, and improvement in concentration and creativity. In short, feeling better enables them to perform better. Riskin believes, and practice has proved, mindfulness increases emotional intelligence, those “soft skills” like self-awareness, self-discipline, and empathy—client connection and counseling skills essential to building client confidence and avoiding malpractice. Mindfulness helps one to detach from focus on the “monkey mind” and to develop a broader, more holistic perspective toward client needs and interests.
Lawyer happiness is reflected in increased client satisfaction and skill in negotiation. Mindfulness underpins the essential negotiating skill of “active listening,” reflecting back, clarifying, acknowledging the effort to communicate, recognizing feelings, and summarizing. All enable the lawyer to connect with the client or adversary as a whole person and obtain valuable information about their needs and interests. Active listening leads to good questions. It also enables you to spot (and avoid) psychological traps like anchoring, loss aversion, and confirmation bias.
Mindfulness also fosters and informs movement from an adversarial to a more cooperative mindset. You are less likely to get stuck in a win-lose, scarce resource perspective. The mindful lawyer is more likely to see the real benefit in “Getting to Yes,” separating the people from the problem and focusing on interests rather than positions as Roger Fisher and William Ury advise. This is not to suggest an adversarial style has no place in negotiation. The skillful lawyer knows how to balance competitive and cooperative styles for a given client and conflict. Mindfulness helps to set the balance.
My own anecdotal experience teaching negotiation underscores the usefulness of mindfulness concepts in lawyering. Developing self-awareness as a negotiator is a key object of my negotiation class of second and third-year law students at the Michigan State University College of Law. My course has modules on the nature of conflict, perception, psychological traps, fairness, and emotional intelligence. Student journals on their many simulated negotiations throughout the semester indicate that increased self-awareness of themselves and others resonates with them, making them better people, lawyers, and negotiators. They gravitate more toward a cooperative rather than an adversarial approach to negotiation, although they are capable of taking a balanced view toward their use. Students are less reactive to emotion, and they listen better.
I do not mean to suggest that mindfulness is a cure for every personal or collective ill of the legal profession. We each bring different backgrounds, experiences, aptitudes, and interests to our work. Although I highly recommend undertaking a meditation practice, not everyone will be drawn to it. You can, however, adopt some mindfulness techniques which will enhance your well-being and improve your practice.
Simply spending a few minutes each day following your breath may lower your blood pressure, slow your heart rate, and relax your mind and body. A few such minutes spent each day may grow into a life-long habit. You may begin to touch a deeper part of yourself, apart from the flurry of thoughts in your mind, and recognize you are not your thoughts. You may even come to believe that thoughts of past or future are just illusions without any substance and that only the present is real. Mindfulness will help you feel better. And feeling better will help your clients feel better too.
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Joe Basta heads Basta Resolutions, PLLC, an Ann Arbor-based firm specializing in mediation and arbitration of commercial and family disputes. He is a former chair of the Alternative Dispute Resolution Section of the State Bar of Michigan. Joe was a trial lawyer for over 34 years at Dykema, litigating complex commercial matters. He teaches negotiation at the Michigan State University of College of Law and is a member of Professional Resolution Experts of Michigan, Inc.
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