By Selina J. Shultz, Esq., LL.M. and Robert A. Creo, Esq.
“The quality of everything we do depends on the quality of the thinking we do before we begin.”
Introduction to Mindfulness
With the strength of groundbreaking neuroscience research behind it, “mindfulness” has been lifted up from its place in alternative, hippie culture to a place of reverence in unlikely conservative cultures such as fortune 500 corporations. A 2015 Wall Street Journal article noted that approximately two dozen law schools now offer courses in mindfulness for their students.
What is mindfulness and why has it become so important? There is a myriad of definitions of mindfulness, which include: present-moment awareness, bare attention, non-judgmental observation, and awareness of continual change. This kind of thinking or “being” is often derived from what are called “contemplative practices”. These can include actual meditation, walking/running, yoga, gardening, or other activities that cause a relaxed focus of our brain. The reason they have such importance is that contemplative practices actually strengthen the frontal lobe of the brain and increase cognitive functions.
This has incredible application for mediators who are charged to facilitate the parties’ decision making process in the middle of the chaos and stress of litigation. The Mindful Mediator website notes “[a]s the science underlying mindfulness practices and meditation continues to reveal robust and powerful effects on concentration, listening skills, empathy, and well-being, a growing number of mediators are finding meditative process to be helpful to their work as mediators, and beneficial to their lives in general.” The insight that mindfulness brings can help mediators be aware of their own biases and personal agendas that hinder their effectiveness.
To learn more about the power of mindfulness in mediation, I asked my colleague, Selina Shultz, who has studied and cultivated the use of mindfulness in her mediation practice, to join me for a discussion.
RAC: Tell us about your mindfulness practice.
SJS: I have been meditating off and on for the last twenty years. However, my serious daily meditation practice began six years ago. After studying mindfulness, I realized I had actually begun a contemplative practice many years before when I started running long distances. I completed my first marathon when I was 16. I didn’t run because I was a competitor. I am not fast. I ran and continue to run because I realized how long hard runs changed the way I approached problems, reacted to stress, and related to others. As a young lawyer, I recognized that on the morning of a trial or presentation, taking a run had a more significant effect on my performance than spending extra time preparing.
RAC: How and when were you introduced to the idea of using mindfulness in mediation?
SJS: Although I would use the contemplative practices of running and meditating in the morning prior to a day of mediation, I began thinking about it more as an integral part of mediation when I was exposed to Leonard Riskin’s work on the subject in a course at Pepperdine’s Straus Institute taught by Rachel Wohl. In addition to developing a contemplative practice through meditation, Riskin and Wohl encourage mediators to use mindfulness more strategically in their practice by setting an intention for their mediations and using breathe during mediations to re-center themselves back on that intention. In addition, they teach mediators to harness their awareness of themselves in this hyper-concentrated state to better manage their own personality. Mediators can begin to recognize that they use different subparts of their personality during the mediation. If the parties are at an impasse, the mediator can make conscious decisions about what subpart of their personality could be more useful in helping the parties move out of it.
RAC: I think you and I agree that the mastery of mediation is the pacing. Mindfulness is so important to be present and slow things down so you can be purposeful about your next move. Unlike being in a courtroom where you are expected to respond immediately, as a mediator, you have the luxury of slowing things down to foster the mindfulness of yourself and the parties, making sure everyone is present. You want to be in the zone of concentration, “ the flow”, where nothing else exists. It is a different way of being with people.
RAC: Tell me about the breathing aspect of mindfulness? I read this quote online:
When a person becomes trapped in past and future their breathing changes. This happens in mediations and negotiations when, for example, someone can’t get past a personal attack or event that “isn’t fair.” It can also materialize when one is overly anxious about what they fear the future may hold. Breathing becomes shallow – caught in the upper chest. The belly becomes rigid. It is as if the body is readying for a fight, and indeed the flight or fight response of the sympathetic nervous system is engaged.
SJS: Because of what scientists call “emotional contagion” this agitated state can spread to other people, including the lawyers. Thankfully, a peaceful state is also contagious. People are hard wired to imitate others, especially people perceived to have higher authority. Despite their lack of decision making power, the mediator is often viewed, especially by lay people and particularly when appointed by the court, as a higher authority. Therefore, the mediator has a great deal of control over the mood of the room. A mindful mediator can be a positive emotional sink in the room and actually slow down others’ breathing.
RAC: So, what’s with the breathing? Why does that matter?
SJS: When people are stuck in a state of lamenting (reliving) the past or hoping it away, then their breathing is shallow. When the breathing slows, the mind opens up and people are more likely to listen and consider other ideas and viewpoints.
RAC: My understanding is that by being present and within the moment allows you to be nimble. You can’t plan too far ahead. My own view of mediation has been that the most effective mediators do not follow formulas and it is not a predictable, mechanized process. I view there being four key tenets of best practices of mediation being based upon: engagement, authenticity, creativity, and being open but not attached to outcome.
As we do our jobs as mediators, we see the tension in lawyers arising from the sense of urgency and efficiency to keep billable hour low and slowing down to have reflective thinking. So, Selina, can contemplative practices ameliorate these tensions? Can you slow down the lawyers?
SJS: Only sometimes. The challenge is to move counsel from a legal framework analysis, focusing on rights to a problem-solving that emphasizes satisfying their clients’ interests. This may involve a business approach of risk versus reward rather than the key goal being to win the case. The method can be as simple as having lawyers put pen to paper to calculate the delta of the difference in economics between potential outcomes. This is separate and apart from consideration of the costs of litigation and continued conflict.
RAC: So in some of my cases, the economic difference between a full victory and defeat on a specific item is nominal when viewed in the context of the entire estate, portfolio, or value of the business. For example, when there are multiple assets with the valuation of each being in dispute, when the total package is compiled, the dispute over one specific asset may become insignificant compared to the entire valuation of all assets.
SJS: So by making them put pen to paper, it is slowing down their thinking and making them focus on the realities of each total proposal. You are in effect, making them more mindful by considering what is actually before them. They are present with the realities instead of spinning with the fear of losing or being exploited.
RAC: By focusing on both the micro and macro, it places the disputed terms in context.
RAC: Can mindfulness be acquired without a separate contemplative practices such as meditation or yoga? Isn’t it an action requiring you to do something, even if the something is just sitting and thinking?
SJS: Yes, but it is like training. The contemplative action is the practice which enhances the mental capabilities by repetition and improvement. You do not naturally deep breath in most situations so it takes a conscious effort to decide to deep breath to center yourself. The benefit of having a contemplative practice which is an intentional action is that it literally builds endurance and enhances gray matter in the brain in the similar way that lifting weights builds muscle mass. Research on the brains of monks who meditate daily for several hours shows the increased size of their frontal lobe.
RAC: So is centering a preparation for peak performance? Let’s talk creativity. I am a disciple of the work of Mihaly. He proposes that anxiety is a lubricant for peak performance as a motivator.
SJS: . . .but there is also a great deal of research that people do their best thinking when their brain is relaxed. Nancy Klein, a researcher from the U.K., contends that people are hard-wired to solve their own problems and by encouraging mindfulness in the participants in the mediation sessions, the mediation process is taping into that inherent ability.
RAC: Fascinating. The language and foundation of mediation is the concept of self-determination. Based on Kline’s theory it can be said that mindful practices naturally build upon the self-determination bedrock.
How does mindfulness help a mediator manage the high emotions in the mediation room?
SJS: When you practice mindfulness it protects the mediator from the strong emotions. It takes mental strength to accept your own vulnerability and use it as a way to connect with people and earn their trust. As Professor Brene Brown articulates in her seminal work, vulnerability drives connection. Professor Brown responds to the common question: Is vulnerability the same as weakness? She says “In our culture, we associate vulnerability with emotions we want to avoid such as fear, shame, and uncertainty. Yet we too often lose sight of the fact that vulnerability is also the birthplace of joy, belonging, creativity, authenticity, and love.” As lawyers, we naturally want to shy away from these unpredictable, and messy, emotions and dynamics. However, mediators are charged with wading into the morass of human dynamics since these problems cannot be solved until you engage with them.
RAC: So, is mindfulness the willingness coupled with the ability to engage with disputants at any level?
SJS: Mindfulness provides the confidence and peace of mind needed to walk into the heat of the conflict to address it head-on.
References and Additional Reading:
Jacob Gershem, Lawyers Go Zen, With Few Objections, Wall Street Journal, June 18, 2015.
The Mindful Impasse: “Moving Mountains with the Breath”
Sara Lazar on how meditation can reshape our brains
Nancy Kline, A Time to Think: Listening to Ignite the Human Mind, (Cassell, 2008).
Ken Cloke, The Dance of Opposites Explorations in Mediation, Dialogue and Conflict Resolution Systems Design, (Good Media Press, 2013).
Mihaly Csikszentmihalyi, Creativity: Flow and the Psychology of Discovery and Invention, (Harper, 1997).
A Conversation with Professor Leonard Riskin about Mindfulness, Dispute Resolution, and Mindfulness Resources for Mediators