Lawyers are known to have strong personalities. It figures lawyers get right into the trenches; we take pride in our work and the results we achieve for our clients. We are trained to defend one perspective – that of our client. Not winning or not getting the deal for our clients impacts us. Call us crazy, but we would rather win than lose.
When we meet opposition to our requests or if our counterpart raises their voice at us, it’s likely we will react in kind. Unfortunately, we often get caught in the moment and we may react strongly, loudly or rudely.
When this happens, our body prepares for what it believes is a threat, and a series of physiological reactions ensue. Our limbic system, a primitive defence system, is designed to protect us from danger. Under real or perceived threat, our defence mechanism gets activated. In case we have to run for cover, we unconsciously prepare for our survival and our body does things like bringing more oxygen to our lungs and bringing more nutrients to our muscles.
The problem is that when we get into this protective state, our pre-frontal cortex, which is our intelligence centre, works less. Hum. This is not good when we are responsible for people’s lives.
The client’s case does not get advanced during these kinds of heated interactions. We are not planning strategies, we are not evaluating options, and we are not maximizing our intelligence to see opportunities for our clients.
Clients get better results when their lawyers can keep their pre-frontal cortex – their intelligence centre – fully activated. Finding ways to remain in control so that the limbic system doesn’t take over is what our clients need from us.
Since the discovery that the brain is plastic and not fixed or hardwired, there are new powerful possibilities that enable people to use their brain’s incredible abilities to control how we react and to avoid losing our bearings.
Humans were built with the ability to react quickly to avoid all kinds of dangers, from fear of being hurt physically to fear of being hurt emotionally. That’s the mechanism that is at play when we lose it with our colleagues.
But humans are also built with the ability to control themselves. This is why the Law Society of Upper Canada approved this workshop for professionalism credits: The New Lawyer: The neuroscience of self-regulation. Learn more about the event here.
The new standard of practice requires us to do whatever it takes to acquire the tools that will enable us to remain in control of our emotions even if our counterpart does not.
Register in our workshop and be a pioneer in the changing profession for the benefit of clients!
People are savvier and demand not only satisfactory results but a more humanistic experience with the legal process. This includes a good working relationship with their legal advisors and the negotiation team.
Clients expect their negotiator to be self-restrained and to focus on the client’s goals rather than to get caught up in personal vendetta.
Clients do not want to spend their time and money managing their advisor’s behaviour; they expect their advisor to behave in a professional and respectful manner while advancing their case. The spring 2013 Gazette (which is the Law Society of Upper Canada Publication) published an article about the changing legal profession and agreed that the new role of lawyers includes “people management skills”.
People are embarrassed and uncomfortable when their own negotiator loses their cool or treats other members of the team with disrespect.
People also get deeply offended and hurt when opposing counsel issues personal attacks, put downs or sarcastic comments against them or any member of the team.
While lawyers are obligated to defend their client’s interests, they are nonetheless bound by several often forgotten Rules of Professional Conduct designed to bring civility, respect, and to promote settlements.
Lawyers who lose their focus or issue personal attacks are not advancing their client’s objectives and are certainly not bringing civility to the profession.
I believe that the majority of lawyers do not intentionally lose it in front of their clients or the team. We are simply not trained enough in self-control skills!
The Law Society of Upper Canada recognizes the importance of this topic and approved the program “The New Negotiator: The neuroscience of self-regulation” for mandatory professionalism training. http://boutetfamilylaw.com/upcoming-events/
The legal profession is changing. Be that new negotiator for your clients! Register for this fun and powerful conference to perfect your self-regulation!
Faculty: Nathalie Boutet: Nathalie Boutet is a leading Canadian mediator and collaborative law lawyer. She is also a Deputy Judge in the Ontario Small Claims Court and a local and international teacher. She regularly provides opinions to the media on legal matters.
Dr. Linda Page: With a background in educational innovation, sociology and anthropology, psychotherapy practice, psychology professorship, business entrepreneurship, and coach training and practice, she teaches principles and practices that yield optimum functioning. With David Rock, she co-authored Coaching with the Brain in Mind: Foundations for Practice (John Wiley & Sons, 2009), which draws on modern neuroscience for practical tools to help coaches and their clients. Dr. Page founded Adler International Learning.
This upcoming weekend in Toronto is the first North American Expo bringing together all of the resources needed to support families dealing with Separation & Divorce, Medical, Mental Health, and other lifestyle issues and provides information to help build and support a healthy family: The Family Support Expo 2012.
The Family Support Expo will showcase a variety of services and products and offer access to community resources, organizations and experts in the industry.
Nathalie Boutet, a Family Law Lawyer and Principal of Boutet Family law will be a guest speaker on Saturday Oct 20 between 3pm-4:30pm speaking about Child/Spousal Support, Property Division and Equalization. Nathalie will also have a booth at the event so please stop by to say hello. Booth #502.
Here are the details for the event:
Sat Oct 20th and Sun Oct 21st
Family Support Expo 2012
Toronto International Centre – Hall 5
6900 Airport Road
written by Michael McKiernan published in Law Times
A crash course in neuroscience can dramatically improve family lawyers’ relationships with their clients, according to a Toronto practitioner.
Nathalie Boutet, a mediation and collaborative partner at Basman Smith LLP and founder of the Neuro Family Law Institute, says lawyers have been slow to capitalize on the ever-developing area of brain research.
“Lawyers don’t think it’s their job to know about the workings of the client and their brain,” says Boutet.
“They think it’s their job to know about the law, but it’s impossible to separate the law from the people who are in the legal system. Lawyers are a little bit reticent to get in when there are strong emotions, and I’m not asking that we become therapists. I’m asking that we become aware of what is going on for our clients so we can intervene gently and powerfully.”
At the recent Neuro Family Law Conference in Toronto, Boutet and professional coach Linda Page told a room full of lawyers it’s hard to appreciate how difficult the family law process can be for clients.
“For them, it’s like being in a burning house with no escape,” said Boutet. “They are trapped in our system. The way their brains work has serious implications for them, their kids, and their families. We are not taught that in law school.”
Boutet said brains build up a shorthand for interactions with people and places based on stored memories of previous encounters that she calls brain patterns.
For evolutionary reasons, negative interactions are more likely to get stored so people are ready to respond when they sense danger. After years of negative interactions with a former partner, that means even apparently minor complaints can trigger emotions, according to Boutet.
“How many of you have had a client who says,’ Did you see the way he looked at me?’ That’s real for them. We can’t say there was no look or don’t worry about it. It’s their experience, and we can’t trivialize what triggers them. It means nothing to us because we don’t have the brain patterns associated with that look.”
Lawyers should be aware, she said, of the effect the heightened emotions involved when clients split from partners can have on their thinking.
“Our ability to think and reason diminishes when we are triggered,” she noted. “Just think of how many times your clients are triggered, and you’re asking them to make complex decisions. Should you guys have spousal support with tax or without tax? Should you sign an interim agreement? Should you choose a collaborative lawyer? It’s endless.”
As a result, according to Boutet, family lawyers should encourage clients to take notes during meetings and have them repeat back the subjects discussed in order to make sure they absorb the information and understand the consequences of any decision.
“You know your client is not going to retain a thing you say at your first meeting, so you might send them a confirming letter,” said Boutet.
The process can also leave many clients on a short fuse. Boutet recalled one of hers, a former government employee who was the epitome of calm and respect in meetings with her. But during a spousal support negotiation, the man exploded in rage after his wife wrote down her opening offer. He lifted himself up on the chair and onto the table, went red in the face, and said, “This is ridiculous, I’m leaving,” said Boutet.
Page, meanwhile, led participants through the SCARF model that divides most human social experiences into five broad categories: status, certainty, autonomy, relatedness, and fairness.
Threats to any one will elicit an automatic emotional response, Page said, but understanding which of the five categories is most important to the client can help a lawyer prepare. In the case of Boutet’s government worker, the perceived unfairness of his wife’s offer triggered him.
A way to tackle the problem in advance is desensitization or “trying something over and over,” said Page.
“There’s a lot of work we can do with our clients ahead of time to say, ‘How are you going to feel when this option is presented?’” said Boutet.
Another technique involves reframing the situation.
“If you see a picture of people coming out of a church crying, the first reaction is they’re in grief,” said Page. “If you reframe it and say the context is at a wedding. It changes things. Reframing can help calm the limbic system.”
Simply encouraging clients to think about what’s likely to trigger them can actually help limit the emotional response, according to Page.
“If you catch yourself getting angry, then wait a minute and take a breath,” she said. “It gives you the ability to switch from intuition to where we do our reasoning,” she added.
I am very excited to report that we held the Neuro Family Law Conference for a third time in Ontario this June. The Neuro Family Law Conference provides neuro science and other practical information to practitioners who deal with separating families. These practitioners register to the conference because they want to understand their clients better; how do clients react to pressure, stress and triggers that the legal system provokes in them. The attendees love this interactive and fun conference and I do believe they gain great insights into the brains of their clients. Stay tuned for announcements of more brain-related conferences!
This past month Nathalie Boutet was featured on Divorce Source Radio discussing how lawyers who understand how the brain works are better able to help their clients get results that reflect who they are rather than results based on emotional or angry responses.
Authors Bush and Folger speak of the power of mediation to resolve divorces. The methodologies of mediation are very well suited for resolving conflicts between people that have been in close or personal relationships or for those that will be tied together in the future – such as when there are children.
The ultimate goal of mediation is to resolve all of the legal issues related to a separation on a final basis in a manner that serves the interests of both parties and their families. But even if mediation terminates before a final agreement has been reached, the mediation process can still be considered successful for families.
Mediation would be considered successful if any of these factors were achieved:
It allowed the parties to open a channel of communication when none existed, even if it is only for a limited time.
Parties have reached some agreement(s) on some issues; either temporary agreements (agreements that only last for a defined period of time) or partial agreements (agreements that cover some but not all of the issues).
If any of points 1 or 2 has made the legal separation process less expensive than if the parties had not tried mediation.
If any of points 1 to 3 has given some hope or relief to a party or a child of the family.
The parties have reached a final agreement on all issues.
Mediation can therefore be extremely positive even if the process were to end before a final agreement has been reached. Mediation has a high success rate.
While I see mediation having tremendous value to the families that I have the privilege of helping, there are some circumstances when I would not recommend mediation. Making the decision to choose mediation or any other type of process requires some understanding of all of the options. This ensures that the choice of process will be beneficial to your family needs.
People who face a separation should consult with more than one professional to make sure that they are explained the pros and cons of the several process options. Beware that some lawyers may not be inclined to propose processes that they do not practice in.
Some of the circumstances when I would not recommend mediation or other types of out of court processes include:
There is urgency and if it remains unresolved it will prejudice the legal position of the other person. Examples include money being dissipated or people threatening to take children out of the country;
Someone is afraid for their or their children’s safety;
There is serious lack of trust;
Untreated mental illness; or
Getting sound legal advice about the different processes is crucial to ensure you choose the process that best meets you and your family needs.
In the second edition of the award winning book “The Promise of Mediation: The transformative approach to conflict”,
Written by Nathalie Boutet Published in the Ontario Bar Association News under the Alternative Dispute Resolution Law Section Volume 20, No.1 – February 2012
People contemplating separation have frequently endured long periods of time, sometimes years, in unhappy, acrimonious and even violent relationships. Most of these people have experienced strong negative emotions towards their spouse for years. The limbic system and more precisely the amygdale, is responsible for some of our emotions. 2
Our ability to think and reason is interconnected with how we feel. This causes our ability to think to be diminished when we are experiencing strong emotions.3 It is the frontal cortex that is responsible for reasoning and thinking.
In family law, we throw these already emotionally taxed people into a legal process which is rooted in conflict. We ask these emotionally drained people to work with their spouse, whom they could not work with during the marriage and to make decisions that will have deep impacts for the rest of their and their children’s lives.
When separating people are asked to work with their former partner, they are usually triggered emotionally. They are asked to make decisions when they are animated by strong feelings of fear, shame, anger and resentment. We ask them to make decisions when we know their cognitive faculties are diminished. This partly explains why separating spouses find it so difficult to work together, and why so many families and children are destroyed by the separation process. The impact of this predicament can have long term devastating effects both emotionally and financially for both spouses and their children.
While we often hear that things are much better and that many cases end before parties go to trial, there is little cause for celebration. Usually by the time people settle they have gone through exhausting, scary and stressful steps in the legal system.
According to research, the type of negotiation that most families encounter during their legal journey leaves them feeling dissatisfied. Aptly said by Professor and Author Julie Mcfarlane4:
[In Court] lawyers prepare for litigation and negotiation in virtually the same manner. Clients are not offered specialized negotiation techniques and strategies that could heighten their chances of a good settlement and expand the range of available outcomes. Instead, negotiation proceeds along a fairly predictable and unimaginative path of an exchange of inflated offers and counter-offers, until the distance is broken down to a point of agreement.
It leaves clients facing an unexpected collapse in their expectations when they make Offers to Settle that are not as favourable to them as the initial claims and demands made by their counsel at the outset of the [court] proceedings. Very often, offers you will have to make well into the court process will be much less favourable to you than your original offer because of a series of unforeseen circumstances in your case, exhaustion of the parties, diminished financial ability to fund the balance of the case and sometimes external pressures to settle for less in order to move away from the conflict.
Litigants are usually shocked to see the sometimes insignificant difference between the original offers to settle and the final arrangements, when legal costs are factored in. Clients are often told by their lawyers at the very beginning of the case, that they have a good case based on the legal principles disclosed. What is missing from clients’ understanding is the reality of several financial and non-financial costs associated with litigation.
Interest-based negotiation (which is used in Collaborative Law and by some mediators) is currently the most brain-friendly method. It enables clients to express why they want certain things before any request is formulated, and clients are told about the clear and predictable steps to the process. This allows the amygdale to calm down and the frontal cortex to do its job – to reason and think.
Unfortunately, only a small number of separating clients have access to interest-based negotiation. Several lawyers continue to use old style approaches to negotiation such as exchanging letters in what usually turns into years of unsatisfactory paper-back-and-forth negotiation, rather than meeting in person and allowing parties to speak about what’s important to one another.
Even mediation does not always create a brain-friendly atmosphere. Some mediators continue to use an old negotiation model and have not converted to using interest-based negotiation.
Indeed, many mediators continue to request a legal memorandum from the lawyers before commencing the case, which has the unfortunate result of deepening clients’ attachments to their “positions”.
According to authors, Robert A. B. Bush and Joseph P. Folger, 5 when we ask people to take a “position”, we make it more difficult for them to find mutually acceptable solutions. They believe that “conflict generates a sense of self-absorption: compared with before, each party becomes more focused on self alone, more protective of self and more suspicious, hostile, closed and impervious to the perspective of the other person. People tend to become more entrenched in their own position.”
Then several mediators engage the parties in the “cut the difference in half” method which surely motivates people to make unreasonable opening positions. When someone makes this type of proposal, it emotionally triggers the other party. The other party’s cognitive functions will be affected and they will react in kind, which will emotionally trigger the other spouse. This creates a dangerous chain of events.
It is our duty to offer best practices to separating spouses. I advocate for wide-spread use of the brain-friendly method of “interest-based” negotiation for all negotiations and mediation, not just Collaborative Law.
When we do not offer a brain-friendly formula, we risk being the blind witnesses of clients in distress potentially making decisions or taking action from a place of diminished cognitive capabilities.
We ought to offer families a healthier alternative to marital conflict than what is currently available.
1 By Nathalie Boutet. Nathalie is a leading Canadian family law lawyer. She is also a Deputy Judge in the Small Claims Court, a local and international teacher and she is a sought after Mediator and Collaborative Law lawyer. She regularly provides opinions to the Media on current legal matters.
2 As Joseph LeDoux explained in his comprehensive book, The emotional brain; The mysterious underpinnings of emotional life (Simon & Schuster Paperbacks, 1996).
3 This is well explained in David Rock’s article: “SCARF: a brain-based model for collaborating with and influencing others”, first published in the Neuro Leadership Journal, 2008.
4 Julie Macfarlane. The New Lawyer: How Settlement is Transforming the Practice of Law (UBC Press: 2008).
5 Robert A. B. Bush and Joseph P. Folger. The Promise of Mediation, The Transformative Approach To Conflict, (Jossey-Bass, 2005 x