Riskin, L L --- "Mindfulness: Foundational Training for Dispute Resolution" [2005] LegEdDig 29; (2005) 13(4) Legal Education Digest 18

Mindfulness: Foundational Training for Dispute Resolution

L L Riskin

[2005] LegEdDig 29; (2005) 13(4) Legal Education Digest 18

54 J Legal Educ 1, 2004, pp 79–90

It is a fact of the human condition that we are suffused with fears, insecurities, passions, impulses, judgments, rationalisations, assumptions, biases, and the mental shortcuts that some academics call ‘heuristics.’ Such mental and emotional influences, of course, help guide us through life and through professional activities, including teaching, resolving disputes, and lawyering. The problem is that they also can interfere with our ability to do these activities well.

Mindlessness impairs our work as practitioners of dispute resolution in several ways. For example, it could mean that a mediator or negotiator is not very ‘present’ with the other participants or with himself, i.e. not fully aware of what is going on. This diminishes the professional’s ability to gather information and to listen to, and understand, others and himself, and even to achieve satisfaction from his work. The second problem is that, in the grip of mindlessness, we sometimes rely on old habits and assumptions, rather than deciding what behaviour is most suitable in the precise circumstances we are encountering.

A great deal of what we teach about negotiation, mediation, and choosing or building dispute resolution processes requires functioning in fresh ways. Most of us have experienced at least three kinds of problems with such teaching and its outcome. First, some students — in both law school and CLE classes — cannot relate to value-creating approaches. This is due at least partially to the fact that they are so strongly attached to value-distributing assumptions that they do not recognise them as assumptions, instead believing that they represent a kind of self-evident truth about appropriate negotiation behaviour.

Second, some students learn too much of a lesson from their introduction to value-creating approaches, almost blindly embracing and identifying with them. As a result, they ignore the tension between value creating and value claiming, and thereby become vulnerable to exploitation by a negotiation counterpart who emphasises value claiming. Third, many students who do comprehend the philosophy, strategies, and risks of value-creating approaches, and even take command of them in an academic setting, have trouble implementing them in practice.

Teachers and trainers commonly employ a range of instructional methods to teach perspectives and skills necessary to appropriately implement the new approaches to negotiation, mediation, and lawyering described above. In addition to readings, lectures, and demonstrations, these include role-play simulations dealing with such activities as listening and brainstorming, as well as practice in specific processes, such as interviewing and counselling, negotiation, mediation, and journalling and other reflective practices, including intensive ‘processing’ of exercises and other forms of supervision. Students learn from each of these activities, of course. Similarly, for a person to appropriately implement the strategies associated with the new approaches to mediation and negotiation and lawyering, she must have a set of foundational capacities, including awareness, emotional sophistication, and understanding.

Mindfulness means being aware, moment to moment, without judgment, of one’s bodily sensations, thoughts, emotions, and consciousness. Mindfulness meditation both requires and produces a measure of equanimity, which reinforces the ability to fix attention where we want it to be. The practice has a number of other potential benefits that motivate people to participate. It commonly helps people deal better with stress, improve concentration, develop self-understanding and understanding of others, and feel compassion and empathy. Some of the law school and post-law school efforts have had a range of focuses, including managing stress, developing spiritually, clarifying motivations, or enhancing skills in law school, law practice or law teaching.

In recent years mindfulness meditation has appeared in a variety of programs in connection with teaching negotiation or mediation. Mindfulness can help negotiators and mediators in several ways. It provides methods for calming the mind, concentrating, experiencing compassion and empathy, and achieving an awareness of, and ‘distance’ from, thoughts, emotions, and habitual impulses that can interfere with making good judgments and with building rapport and motivating others. Thus, it can help us make appropriate strategic decisions, moment to moment.

Mindfulness allows mediators to make better judgments about how the mediation process should work because it enables them to keep a focus on goals and to maintain a moment-to-moment awareness. The education and training programs that deal with mindfulness and negotiation or mediation include mindfulness meditation instruction and practice, as well as exercises and discussions on how to bring mindful awareness into professional practice and other aspects of daily life. Exercises on listening often form important parts of such programs. Students, already in a reasonably mindful state, are asked to engage in activities in which their ability to listen is challenged by emotional or other distractions, and they are asked to be aware of these distractions.

In order to plan and implement programs in mindfulness and dispute resolution — or to decide not to do so — we must be clear about our intentions. Mindfulness meditation can serve a range of goals, from lightening up, to improving our professional practices and our lives, to a kind of spiritual freedom. And, of course, nothing is more helpful in understanding our goals and the mental and emotional obstacles to achieving them than the non-judgmental awareness that is the essence of mindfulness.