Neuro-law: A New World of Law Part 1

Triune brain artist impression

If you’re a lawyer (and chances are high if you’re reading this 😉 then you may well wonder what NEUROSCIENCE has to do with law or why you should care.

Here are some extracts explaining what’s going on around the world that you may not be aware of, understandably given the high demands of the legal profession and the pressure of billing by the hour.

Do you have time to read this? I’d argue you do for 2 reasons:

  1. You’re a lawyer and read really fast so you’ll soon decide if this is worth your while.
  2. Sometime you have to stop and sharpen the axe – even when it means you lose 15 minutes of billable tree-cutting time.

Extracts from Negotiation & Neuroscience by Kay Elliot.

Every day we are expected to make decisions that may have lasting effects: Do I negotiate with the customer that is obnoxious, demanding and unreasonable? Do I end a business relationship when the other party injures me financially? Do I negotiate with my life partner who has betrayed me about how much time I get to spend with our child? On a macro scale – should the USA negotiate with the Taliban when it is publicly dedicated to acts of terrorism against our country? Was Nelson Mandela right to negotiate with the apartheid regime of South Africa? Was Churchill wise to not negotiate with Hitler during World War II? When should we say no and fight? When should we say let’s negotiate? Is there a paradigm for making wise decisions in these difficult settings? Should we ever bargain with the “devil”?

Wise dispute resolution poses three challenges: avoiding predominately emotional decision making; taking the time to do a decision tree of alternatives; and assessing the ethical and moral issues involved in any situation. Neuroscientists and psychologists tell us that we all make these types of decisions using different parts of our brains: the intuitive, emotional brain and the rational, analytical brain. Other writers call these structures the old brain (the so-called snake brain) and the newer brain.

So take a look at the image again – thanks to Dr Paul Maclean – and see the 3 parts of the brain:

  1. Neo-cortex or new brain – cognitive section of the brain, the rational, figuring stuff out part
  2. Limbic system (in the middle)  – responsible for emotional attachments, also known as mammalian brain
  3. The Survival/ Reptilian/ Old brain – this is our flight or fight response that helps us act instantly when there isn’t time to weigh up pros and cons.

Some more from Kay Elliot:

The preference for distributive conflict styles prevents integration. In another context we see that narrowing the issues is beneficial for trying a law suit – fewer points to prove – but broadening the issues provides more scope for trades. The litigator in negotiating a settlement might only use the parts of the brain best suited for math problems and fail to utilize other parts of the brain better suited to creative tasks…

Neuroscience, while exciting, is still in its early stages of development. Neuroimaging holds the promise, however, of allowing unprecedented access to the mechanisms of the brain as it makes decisions. We are finally able to advance our understanding of just what is happening in the brain during negotiation and mediation, not by words but with pictures… 

There are many workshops being offered to mediators and negotiators in this and related fields. In the summer of 2010, for example, Pepperdine University School of Law presented Mindfulness for Conflict Resolvers: Lawyers, Mediators, Negotiators, Judges, Arbitrators & Managers, led by Len Riskin, Professor at the University of Florida College of Law, and Rachel Wohl, Director of the Maryland Supreme Court Mediation and Conflict Resolution Office. In June of that year a webinar on Contemplative Neuroscience with Richard Davidson from the University of Wisconsin was presented. On October 22, 2010, the University of California-Hastings College of Law sponsored a symposium on Emotions and Negotiation. Two leading authorities on non verbal communication, Paul Ekman and Clark Freshman, presented the latest research findings on using emotional information to negotiate more effectively…

In June, 2010, a course in Neuro-Collaboration was offered by Pauline Tesler (Attorney) and Thomas Lewis (MD and Neuroscientist) at Pepperdine. One observation from that course crystallizes the intersection of Neuroscience and Law:

“Collaborative lawyers undertake a task and if they are to do well at it, their beliefs and behaviors must support the ends they pursue and the processes they offer, must match up with what their clients and colleagues reasonably expect, and with what is known about how human beings actually do behave during conflict and conflict resolution processes. This does not mean that a collaborative lawyer must be a neuro-scientist or a psychotherapist or communications specialist. But collaborative lawyers do have a responsibility to make their work congruent with how they and their clients are biologically wired to think, feel, and decide, if they are to deliver what they promise.”

Lawyers all over the world are starting to see how learning from other disciplines, such as Neuroscience can have a profound effect on how we practise law.

Are you interested in innovation in law or do you aspire to the nostalgia of a law office lined with books and a mahogany desk with a jar of quill pens?

The Centre for Integrative Law’s mission is: To create a network of self-aware legal professionals, trained in global legal innovation, to articulate a new vision of law for South Africa.

If you’re interested in being a self-aware legal professional, trained in global legal innovation, come to hear the brilliant legal thought leader Pauline Tesler, from San Francisco, talking about Neuro-Literacy for Lawyers.

Cape Town: 10 April 2013

Johannesburg: 23 April 2013

Click here to register.

Part 2 of Neuro Law will follow.

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