Understanding the Role of Lawyers as Peacemakers and Healers
Towards the end of the 20th century we crossed a conceptual threshold in understanding the impact of law on people. The traditional view was to see law as a set of agreed upon rules to be administered by a neutral authority through rational procedures and applied evenhandedly (without favoring or disfavoring people on account of their race, national origin, religion, gender, age, financial status or disability status). In the traditional view the legal system required adversarial hearings or trials to decide disputes the parties could not resolve on their own. No real consideration was given to whether these purely adversarial proceedings met the emotional and psychological needs of the parties or how they affected the mental health of the parties. Unfortunately the adversarial system had largely negative therapeutic effects on litigants by heightening conflict and aggravating their underlying animosity toward one another.
During the 1990s a number of lawyers began speaking about cooperative justice, holistic law, collaborative justice, restorative justice and therapeutic justice. Cooperative justice was focused on bringing a peaceful spirit and a sincere willingness to settle disputes into what had been a purely adversarial system. The key insight of holistic law was that law affects not just an individual’s property rights or freedoms (such as the freedoms to work, express oneself or visit one’s children), but the whole person, and by extension the whole of society. That’s because how people are treated by the legal system affects their attitudes toward government, toward authority, toward the prevailing culture, toward social groups within society and even toward themselves.
In the 1990s progressive lawyers propagated the view that law is a social force which impacts the emotional life and psychological wellbeing of all the people who participate in or who are bound by the results of legal proceedings. Practitioners using the new justice models sought to go beyond settling cases. They wanted users of the legal system to wind up with positive rather than negative therapeutic consequences. In this view resolution of a legal dispute would be successful if the parties actually forgave each other for past harm, if they cleared up a serious misunderstanding to see the legitimacy of each other’s point of view or worked through an underlying grievance to restore a shattered relationship. This new approach attracted lawyers who wanted to be peacemakers and healers rather than gladiators. It provided an exciting new role for lawyers.
The Emotional Obstacles Facing Lawyers Who Would be Peacemakers and Healers
The project of making peace between people locked in a legal struggle, and of healing the rift between them, isn’t an easy one. It’s not as if you’re always dealing with perfectly rational, easy going and pleasant people. Often at least one of the parties proves to be a difficult person. Who are difficult people? Some of them make us feel frustrated, upset or angry. Some leave us confused, perplexed or even incredulous. Some fill us with guilt, shame, sadness, hopelessness or despair. They are the people who give us a bumpy emotional ride and tire us out. They test our patience, our compassion, our faith and our persistence.
When trial lawyers deal with difficult litigants in an adversary system they do not undertake the responsibility or the challenge of getting them to make peace. They conduct discovery, perform at a hearing or trial and then it’s over. When you’re a lawyer acting as peacemaker or healer, it’s different. You’re attempting to get two or more people at war to stop quarreling, sit quietly, really listen to each other and take the risk of changing their attitudes and behaviors toward each other for the sake of really making peace and moving on with their lives. Not easy, huh?
Let’s face it. None of us can get another person to feel what we feel, think what we think, value what we value or do what we want them to do. All we can do is encourage them to stop insisting they’re right and everybody else is wrong, to move from the narrowed vision of hate or self-pity to consider alternative viewpoints, to see how staying engaged in conflict may be more harmful than helpful and to open up to the possibility that change may be beneficial. When you’re trying to do this with truly difficult people who are good at pushing other people’s buttons, don’t be surprised if you get your buttons pushed. Don’t be surprised if you start taking sides and getting sucked into the conflict. Don’t be surprised if you get upset and lose it when you meant to stay cool. Don’t be surprised if carry your experiences with these difficult people around in your head, and annoy your family members and friends by rehashing them over meals or during moments of leisure.
There’s an old saying that no good deed goes unpunished. The challenge of making true and lasting peace between difficult people is that it can generate feelings of discouragement from unsuccessful effort. On the purely adversarial side of law you get a chance to go into the ring and prove the other side wrong – to show they were at fault, that they lied or that they hurt an innocent person and deserve to pay a judgment or go to jail over their protestations of innocence. Even if you lose you have the satisfaction of not holding back, taking your best shot and venting your anger. You can also blame someone else like the judge or jury if you lose, because it’s the judge or jury which decides the outcome. The case ends with the outcome. You don’t stay in touch with your client or the opposed party to find out how they were affected by the proceedings or the result.
When your goal is not to win a verdict but to make peace between difficult people you must show patience, tolerance and restraint. If you fail to make peace between difficult people and heal their wounds, there is no judge or jury to blame. You’re likely to blame yourself and make yourself feel bad. When this happens enough times you may actually compromise your ability to function as a therapeutic lawyer. Why? It could be that fatigue or burnout sets in. It could be doubt – doubting your competence to get warring parties to inwardly settle their differences where it counts, in their hearts. You may even come to doubt the wisdom of the whole enterprise of therapeutic law. The most effective way to avoid this sort of burnout and keep renewing your energy, vitality and health as a therapeutic lawyer is by using self-compassion.
What is Self-Compassion and How Can We Use it to Help Ourselves?
According to Christopher K. Germer, Ph.D., author of the mindful path to self-compassion: Freeing Yourself from Destructive Thoughts and Emotions, self-compassion is being truly kind to oneself when one is suffering from the emotional pain of living. All of us have desires, hopes and fantasies of how our lives will turn out. All of us have dashed expectations. When reality frustrates or disappoints us, we feel emotional pain and our self-image (our story of who we’re meant to be) takes a hit. If we had self-compassion, we would acknowledge rather than deny our emotional pain, we would not judge ourselves to be bad people for having negative emotions and we would try to soothe our own suffering by wishing ourselves well.
Let’s say you’ve made a mistake or failed at achieving a goal in your practice of therapeutic law. You’re feeling bad and you have an urge to start verbally beating up on yourself. The first step of self-compassion is mindfulness. No matter how much love you hold in your heart you won’t be able to give yourself that love and soothe your own pain if you find emotional pain unbearable and if you always react to it by resisting it or trying to escape it. Dr. Germer says it’s crucial to turn toward your pain, embrace it and allow yourself to really feel it.
Now you’re in position to give yourself the love you hold in your heart. Dr. Germer describes step two as befriending, holding and comforting oneself as the person who is in pain with all of the good will you can muster. Dr. Germer says that self-compassion soothes the troubled mind like a loving friend who listens to our troubles and travails without judgment.
Unfortunately, says Dr. Germer, most people can’t maintain good will toward themselves when things don’t go their way. They are extremely uncomfortable when they experience negative feelings (such as frustration, anger, disappointment or sadness) and they react by fighting or fleeing them. To fight a negative feeling is to blame and argue with the person you judge responsible for your problem, be it yourself or someone else. To flee is to deny the feeling, pretend everything is okay and not deal with the feeling.
When people resist emotional pain they end up stuck in their pain and it just gets worse. The internal struggle to resist emotional pain ends up harming their psyches, their bodies and even their relationships by making them self-absorbed and isolated. Some people have a tendency to self-blame and self-criticize when things don’t go well. Some people are more likely to blame others and verbally attack them when feeling emotional pain. Neither approach eases the pain of the person who is suffering. Self-blame brings depression. Blaming others causes social friction, alienation and isolation.
Most lawyers were raised by parents who expected them to excel and so they are ultra-sensitive to shame when they don’t shine at what they do. Most lawyers are highly conscientious people with exacting standards of performance, ethics and loyalty to their clients. When, for whatever reason, they fail to come through for their clients, their law firm or their family, lawyers tend to engage in harsh self-blame. The typical lawyer’s mental toolkit does not include the ability to be soft, flexible, kindly or forgiving toward oneself when one hasn’t met one’s expectations.
Dr. Germer says that self-criticism is a way of side-stepping emotional pain which increases instead of lightens your burden. Think of a time when you warned your child not to light a match, not to touch a knife or not to run in a slippery place, but he did it anyway and ended up sobbing with tears streaming down his face. At that moment were you compassionate? Were you able to put aside the fact that he didn’t abide your warning and console him – or did you get angry and use harsh words of blame and accusation, only to feel like an insensitive jerk later on?
Self-compassion is choosing not to berate yourself when the blaming part of your mind thinks you deserve it. Dr. Germer recommends that when we believe we have screwed up that we say to ourselves, “May I forgive myself. May I learn from this mistake.” All people have an innate wish to be happy and free from suffering. All people experience emotional pain. Both are universal aspects of human existence. According to Dr. Germer, when we meet our own suffering with self-compassion we connect with all humanity, we get in touch with everyone else’s pain, we get in touch with everyone else’s wish to be happy and free of suffering, and we re-enforce our own wish to be happy and free from suffering.
Dr. Germer says the key to effective use of self-compassion is being kind to yourself because you’re suffering rather than doing so to feel better. There’s a difference between cure and care. Cure aims to fix a person’s problem which can be impossible. Care is accepting that a problem exists and being kind to the person because he’s suffering. When you’re hurting because your peacemaking work is difficult and you haven’t met with much success lately, don’t challenge your negative thoughts. Don’t tell yourself “Stop whining. Get back up on the horse you sissy. You can do this if you just work harder and keep trying.” When you deny your emotional pain it only gets stronger. “It goes into the basement and lifts weights.” Instead, turn toward your negative thoughts and feelings with open eyes and an open heart with non-judgmental awareness and compassion, and you will get relief.
Self-Compassion is the Foundation for Having Compassion for Others
To be good at making peace between and healing the damaged relationships of others it’s crucial to be empathic (able to feel their pain) and compassionate (wishing them to be free of suffering). As I’ve already stated, when you practice therapeutic law your compassion for others will be tested and challenged and that’s why self-compassion will help you hang in there when the going gets tough. Self-compassion boosts your compassion for others. Indeed without self-compassion it’s not possible to have compassion for others.
Imagine being kind to someone when that person is very angry and being highly unpleasant toward you. Meeting anger with kindness is disarming and effective. The angry person does not expect it, he can’t fuel his anger with your kindness and your kindness is just what he needs (even if it’s not what his angry brain wants). How can self-compassion help you pull this off?
Every lawyer has his warts. For some it’s a fear of public speaking. For some it’s being disorganized with paperwork. For some it’s utter incompetence with technology. For others it’s losing one’s temper and becoming abusive. Dr. Germer encourages us to accept ourselves warts and all. This means owning your problems fully and completely, whatever they may be. Once we fully acknowledge our difficulties with true compassion, says Dr. Germer, we can then feel better about ourselves and make our lives easier. We actually begin to accept and like the person we already are.
Suffering is not a flaw to be ashamed of, but part of the human condition. The more humble and loving you can be to yourself, despite your flaws, the warmer and more accepting you will be toward others. If you regularly treat yourself with kindness when you make a mistake, it’s much easier to be sympathetic toward people who cause you pain. A person who leads a life of self-kindness is better able to help others in a spirit of “relaxed persistence.” He’s less likely to disconnect and head for the hills emotionally when the people he’s trying to help display negative emotions. Dr. Germer says it’s necessary to have self-compassion to be kind to others, and anyone who says that caring for oneself is selfish is propagating a myth.
If all a lawyer cares about is making money, he’ll be pleased when he wins a case and makes a fat fee and displeased when he loses and goes home with empty pockets. But he won’t lose any sleep worrying about how his client or the opposed party feel. It’s harder when you aim to assist the parties heal their inter-personal conflicts, let go of their anger and feel better.
You empower yourself to do this work well when you stop being a big self-critic. Self-critics cause themselves so much pain they can’t open up their hearts to the suffering of others. Since they perceive and treat themselves harshly that’s how they perceive and treat others. Self-critics come in all shapes and sizes. You can be a very idealistic person who truly desires to help others and still be a self-critic. If I’m hurting, I can only take care of you once I’ve attended adequately to my own pain – much like the adult who has to use the oxygen mask first when airplane cabin pressure drops so he can assist the child next to him. According to Dr. Germer, as I deepen my awareness of my own negative feelings and improve my own ability to sit with them, tolerate them and accept them, the more able I am to do this with your negative feelings.
So when you’re trying without success to make peace between very difficult people, don’t throw in the towel when you begin experiencing frustration and anger. Dr. Germer says that transforming such relationships “begins with us. It’s an inside job.” By that he means using inner kindness. Say to yourself, “Just as I want to be happy and free from suffering, so does ___________.”
Practices to Develop Your Self-Compassion
In his book Dr. Germer sets forth five basic methods of developing self-compassion. I will discuss each one below.
(1) Seated meditation using the allow, soften, and love approach. During meditation you start out by breathing slowly and mindfully, mentally locating the discomfort in your body from tension due to stress. Allow that physical discomfort to exist rather than compounding it by trying to wish it away. Next you mentally soften into the tight muscles, allowing them to go soft as you repeat “soft, soft, soft.” Finally, you bring the emotion of love to yourself. Think of your body as the body of a beloved child. Direct love to the part of your body that is tight and uncomfortable from holding stress there. Say “love, love, love.” If negative thoughts come up during the meditation (such as “I stink at therapeutic law. I might as well go back to corporate tax.”) just let them go. Don’t fight them. Just let them drift away like clouds as you quietly repeat “allow, soften, love.” The effect of this approach is to release bodily tension and discomfort and let energy flow freely through your body. Dr. Germer says that if you tense up during a legal proceeding you can intentionally allow your belly and/or your breathe to soften.
(2) Seated or walking meditation with metta. Metta is a word from Pali, the ancient language of India in which Buddha’s sermons were translated in the first century B.C. It translates as “lovingkindness.” To act with metta is to act with “kindness, good will and benevolence.” A metta meditation practice is one aimed at developing “universal, unselfish, all embracing love.” The Buddha spoke mainly of metta in relation to others. The first Buddhist master to speak in depth about directing metta toward oneself was the 5th century Buddhist monk Buddhaghosa. He taught that practicing self-kindness enables us to recognize and identify with the wish that all beings have to be happy and free of suffering.
It’s only when we are kindly disposed towards ourselves that we can take actions to promote the welfare of others, which would include practicing therapeutic law. The Native Americans said that each person had two wolves in his heart, a wolf of love and a wolf of hate, and how each person felt and acted towards others depended on which wolf he fed each day. Thus practicing metta during meditation requires that you wish happiness for yourself. But this is not narcissistic. Your objective is not to be happy at anyone else’s expense; nor is metta for oneself divorced from concern for others. Dr. Germer says metta is not a pity party (which would involve loads of complaining, whining and wallowing in self-pity), nor is it a set of shallow self-affirmations (such as saying “I’m getting stronger, richer and better looking every day when you still feel awful inside”).
Metta practice is focused on the intention of being happy and free from suffering, not the outcome. No one can control external circumstances or guarantee one’s future happiness. In every life there will be change, disappointment, loss and suffering. Metta practice is focused on being a constant, loving companion to oneself. Dr. Germer says the time we most need metta for ourselves is when we feel the worst. However, elsewhere he says that you can build up a reserve of lovingkindness by doing metta meditation everyday. The key phrase to repeat over and over is “May I be safe. May I be happy. May I be healthy. May I live with ease.”
When you have built up a good store of self-kindness you will act with loving attention to yourself when you experience emotional pain. People who are self-critical and lack self-kindness engage in what Dr. Germer calls “anxious attention” when they experience negative emotions. They tend to go into fight-flight and either become overwhelmed and depressed or they get panicked and seek comfort in substances.
Once you have built up a good reserve of metta for yourself, Dr. Germer encourages people to branch out. He suggests a sequence in which you start out wishing safety, happiness, health and ease to someone you love so much that envisioning their face brings a broad smile to your face. Later you try wishing these good things to a person you like. Next to a neutral person that you neither like nor dislike. Then to a person you dislike or who makes your life difficult. Then to all beings.
After reading Dr. Germer’s book I added about ten minutes of metta practice to my own daily meditation routine. I found the results to be remarkable. It increased my level of self-acceptance and healthy (non-narcissistic) self-love. It increased my sensitivity to the emotional suffering of others and my wish for others to be happy and free from suffering. I found myself less reactive to others when they said or did things that caused me irritation, annoyance, disappointment or some form of emotional pain. Following Dr. Germer’s advice I wished such folks safety, happiness, health, and ease, and this not only eased my discomfort but enabled me to sustain good relationships with these people instead of pulling away in anger.
(3) Noting and labeling negative emotions. Buddhist meditators call the constant chatter in their heads “monkey mind.” Cognitive neuroscientists estimate that we have somewhere between 40,000 to 60,000 thoughts a day. Many of these are random and lie at the fringes of conscious awareness. Some of these thoughts are intrusive and obsessive and we wind up ruminating over them instead of being mentally present for our lives. It’s hard to listen to your client, opposing counsel or the opposing party and be compassionate if your head is filled with such distracting chatter.
When you sit down to meditate and you become silent and calm, it becomes possible to hear your thoughts. Some are memories of the past which may be pleasant, disturbing or neutral. These can be simple scenes or complex “mini-movies.” If you had an argument with someone earlier that day you might replay it, evaluate what happened and form judgments about who was right/good and who was wrong/bad. This could trigger feelings of hurt and anger or of shame, regret and the desire to apologize.
Some of your mental noise is anxious anticipation of an event that has not yet occurred. Perhaps your boss has asked you to see him in the afternoon but he hasn’t told you why. Perhaps you’ve asked your teenager to meet with you in the evening for a discussion about homework and grades, sex, drugs or some other loaded topic. Thinking about your meetings to come with your boss or your teenager can trigger feelings. Perhaps thinking about them makes you feel jittery, nervous, tense and anxious. If your mind hasn’t been focused at the office due to a family crisis and you’ve let your work slip, you might start beating up on yourself and call yourself a bad employee or a disloyal employee as you walk toward your boss’s suite. Let’s say you work really long hours and you feel disconnected from your teen. You’re genuinely confused about what to tell him. This might trigger feelings of loneliness, insecurity about your parenting or self-defensive criticism of your teen as being ungrateful for your sacrifices and someone who is too lazy to meet his real potential at school.
Buddhist meditators use different techniques to cleanse and clear their minds of all this mental noise. One approach is to sit quietly in a state of equanimity and invest no emotional attachment to such thoughts, judgments or feelings so they arise, float by like clouds and pass out of your screen of awareness. Another approach is to note and label such thoughts, judgments and feelings as being thoughts, judgments or feeling. This can actually hasten their disappearance.
Dr. Germer advocates the second technique to free us of distractions and become present. He says you can label thinking as “thinking,” feeling as “feeling,” and so forth. You can label specific trains of thought, such as “beating up on myself again.” You can label specific emotions such as fear or sadness. You can also see emotion as “just emotion.” He gives an example of person dealing with fear. “That’s fear! Yes, but it’s only fear.” Dr. Germer says that giving a title to an emotion helps to contain it and relieve it so long as this is done in a soft, gentle way.
The idea is not to wish the feeling away (a form of resistance which would increase stress), but to identify it with a label and accept that you’re experiencing the feeling right now. Remarkably this relieves the power of negative feelings to cause pain. How? Neuroscience says that finding words for feelings deactivates the amygdala, the almond-shaped brain nucleus which triggers the stress response by keying up the hypothalamic-pituitary-adrenal axis. Finding words for feelings decreases our fear of them and actually calms our brain.
(4) Labeling Schemas. According to psychologist Jeffrey Young of Columbia University a schema is an intertwined bundle of intense emotions, bodily sensations, thoughts, and behaviors, which are traceable to early childhood. Every person has one or more schemas which can be activated by circumstances. You can get an inventory of your schemas and learn more about them at www.schematherapy.com. Dr. Germer lists 18 different schemas in his book. Some examples are:
Mistrust/Abuse: I expect to get hurt or be taken advantage of by others.
Emotional Deprivation: I can’t seem to get what I need from others, like understanding, support, and attention.
Defectiveness/Shame: I’m defective, bad, or inferior in some way that makes me unlovable.
Self-Sacrifice: I’m very sensitive to others’ pain and tend to hide my own needs so that I’m not a bother.
Approval-Seeking/Recognition-Seeking: Getting attention and admiration are more important than what is truly satisfying to me.
Negativity/Pessimism: I tend to focus on what will go wrong and on mistakes I’ll probably make.
Punitiveness: I tend to be angry and impatient, and I feel people should be punished for their mistakes.
If working as a therapeutic lawyer activates any of these or the other kinds of schemas and you don’t realize it, then you’re at the mercy of your schema. This will limit the range of your perceptions, thoughts, and feelings, as well as your ability to respond in an open-hearted, flexible and creative way. Let’s say you’re a pessimist and when progress bogs down in mediation you say to yourself “Why bother?” “What’s the use?” or “What a waste of time!” Dr. Germer says you can help yourself in this very moment by mindful awareness of your schema, and by giving yourself self-compassion.
This will help soften and dissolve the pain, and free you up to interact in a much more open-hearted, connected way.
(5) Dr. Germer also lists various ways in which you can be kind to yourself physically, mentally, emotionally, relationally, and spiritually. Since space is limited here, I suggest you read his book for a complete list of practice options, but I will give some examples. For physical self-kindness try a nap, a massage or a warm bath. It also helps to truly savor sensual experiences by opening up all your senses and really drinking in the pleasure of a fine meal, beautiful natural scenery or loving sex with your spouse or partner. For mental self-kindness you can notice and count the number of negative self-judgments you make each day, and this will help reduce them. You can say “yes” when you’re pessimistic or “don’t know” when you catch yourself obsessing about an important decision. When you’re mentally stressed over something ask yourself how you’d feel about this if you just had a few weeks to live, and the bubble of anxiety will most likely pop.
For emotional self-kindness when you’re beating up on yourself ask what your best friend or what a famously kind religious figure like Jesus would say to you. For relational self-kindness focus on your wish to help others and avoid harming them. Helping a stranger and spending money on others are two ways to make you feel better.
For spiritual self-kindess take yourself less lightly. Teach yourself not to fear death. Contemplate the fleeting nature of existence and connect more closely with your Source (be it God, your Higher Power, the Universe, or a specific deity). Dr. Germer finishes his list of ways to be kind to yourself by suggesting we smile more, laugh more, and make an effort to cultivate positive emotions. The cultivation of positive emotions is a huge topic in itself which lies at the center of the new field of positive psychology. There are wonderful books on how to do this by Martin Seligman, Sonja Lyubomirsky, Marci Shimoff, Tal Ben-Shahar, Bob Nozik, Rick Hanson, Wayne Dyer, and the Dalai Lama, to name just a few.
Conclusion
The enterprise of reforming the way law is practiced so it has positive rather than negative therapeutic effects on people is admirable. To bring it off requires not only new ideas and new ways of relating to others within the legal system, but the capacity to be continuously compassionate without burning out. You can’t practice law in a non-adversarial way with a closed, angry heart. Remaining compassionate when faced with people at war, some of whom are likely to be difficult people, is a challenge. The way to meet that challenge is by learning and practicing self-compassion.
In our professional lives as lawyers and in our personal lives as regular people we tend to see others through the lens of judgment, dividing them into human kinds, some worthy of spending time with and getting to know and others not. Why is that we are so ready to find some strangers promising candidates for inclusion in our social world yet equally ready to disdain, reject and distance ourselves from other strangers?
The rate of depression in American society today is approximately 10 times what it was during World War II. There are many different explanations for this, but it is generally agreed that the rise in depression reflects changes in life style. One change in life style which has contributed to this increase in the rate of depression is what we eat. Changes in our eating patterns have caused soaring rates of obesity, heart disease, stroke and depression. During WWII people were much more likely to engage in daily consumption of whole foods (fruits, vegetables and whole grains) than they are today. We are now living in a time when 70% of the food supply is made of processed and refined foods stripped of all virtually nutrients.
It’s easier to forgive others than ourselves. The nobility and magnanimity of forgiving others is appealing. In many cases it’s possible to imagine that what led to the other’s hurtful action was not a deliberate intent to harm, but rather ignorance, naïveté or a mistake. Yet when we feel shame because we have failed at something and let others down or when we feel guilt because we have done something to hurt another, we find it very hard to let ourselves off the hook. Part of this has to do with our personal knowledge of our own standards, intentions and motivations. Letting go of shame/guilt is rare. It’s much more common for us to keep telling ourselves “I should have known better and acted better. I must be a bad person.”
En route to New Jersey to celebrate my beloved father’s 85th birthday, my family and I visited Washington, D.C. so we could show our son Elliott the museums and monuments that capture the history of our country. Among the places we saw were the Lincoln Memorial and the Holocaust Museum. I was profoundly affected by their exhibits which portray the best (Lincoln) and the worst (Hitler) in human potential along with two views of the ideal society at the extreme ends of the philosophical spectrum.