September 08, 2016 Articles

Using Meditation Techniques to Succeed During Stressful Negotiations

By Kaitlyn M. Murphy

Meditation is the mental state of being focused on the present moment, including on one’s feelings, thoughts, and sensations. Recent studies in the field of neuroscience provide empirical support for the proposition that meditation’s focus on the present moment and a meditator’s effort to maintain equanimity in the face of whatever presents itself offer tangible benefits to those who engage in strategic and adversarial work. These studies suggest that meditation can actually change the brain’s neural networks. In one study, MRIs of subjects participating in an eight-week mindfulness practice showed a decrease in the size of the amygdala—the portion of the brain most closely associated with fear and other strong emotions. Other studies identify a correlation between mindfulness practices and decreased levels of the stress hormone cortisol.

Attorneys are engaged in strategic and adversarial work almost constantly. Litigators in particular spend much of their time negotiating with opposing counsel without the benefit of a neutral party like a judge or arbitrator. Ahead of its time, the Harvard Negotiation Law Review hosted a forum nearly 25 years ago on the potential implications of meditation for lawyers. In the wake of recent research, top law schools like the University of California, Berkeley and the University of Virginia have started offering meditation programs and courses to law students.

Few doubt the neurological benefits that lawyers can experience from meditating. Less attention has been paid, however, to the skills that meditation teaches and the way those skills may be particularly useful for lawyers in stressful negotiations. This article draws on the tools commonly taught through meditation and offers five strategies to help lawyers maintain focus and keep cool in emotionally charged situations. Whether you have an established meditation practice or have never tried meditation before, these exercises are designed to help harness your meditation skills and make the most of them during a negotiation.

Set an Intention
Even before setting their posture, many meditators take time to set an intention and reflect on their purpose in meditating. Setting an intention slows and focuses the mind. Advocates can draw on this practice as well. Take a moment before walking into a negotiation to think about your purpose for being there. What are your client’s goals? How can you best accomplish them? How will you respond if something unexpected occurs?

Use Reminders
Setting an intention is a great place to start, but intentions don’t get you very far if you forget about them as soon as you step into the negotiation. Meditators sometimes use the sound of a bell or a woodblock to remind them to keep focused during a sit. You may not want to bring a gong to the negotiation table, but you could set a vibrating alarm on your smartphone or wearable device (like a Fitbit, Jawbone, or watch) to give you a gentle reminder to return your focus to your intention if your mind wanders.

“Just Like Me”
Some meditators turn their practice away from a focus on the breath and toward their feelings or emotions in a practice known as metta, or loving-kindness meditation. Metta is designed to help cultivate a sense of emotional connection with all living beings, including difficult people. One way to draw attention toward the connection we share with difficult people is by using the phrase “just like me.”

Lawyers can use this same technique with an opposing counsel who triggers feelings of exasperation, frustration, or anger. If opposing counsel says something that triggers an emotional response, try to think of a few statements about that person beginning with “just like me.” For example, “just like me, this person cares about her client,” or “just like me, this person is trying to do his best.” If statements like that feel too charitable, you can start with something more basic such as “just like me, this person breathes the air,” or “just like, me this person is alive.” This type of practice likely will not have any impact on the other person’s behavior, but it can help you transform the way you respond to that behavior.

Curiosity
Meditation instructors advise practitioners to greet their thoughts and feelings with gentle curiosity. This means not pushing the feelings away, but also not clinging to them longer than they need to be around. In the same way, during a negotiation lawyers can think about listening to opposing counsel’s positions with gentle curiosity, giving yourself time to play with their ideas before you respond. This helps to slow down the communication process and gives you time to fully consider each option before making a decision about what is best for your client.

Start Where You Are
Sometimes strong emotions are not triggered by something external, but from an internal critic berating us for a perceived misstep. When this happens, advocates can get stuck ruminating on past decisions rather than focusing on how to best represent their clients in the present moment. Meditators refer to this response as a “second arrow.” The first arrow is the outside circumstance that causes us pain and cannot be avoided. The second arrow is the one we shoot at ourselves by needlessly dwelling on how we wish we had avoided the first arrow. Buddhist nun and meditation instructor Pema Chödrön gives the following advice for dealing with second arrows and overwhelming situations: start where you are. Repeating this advice to yourself can help pull you back into the present moment, taking things one step at a time rather than getting lost in an impossible alternate reality.

Whether you practice meditation or not, these meditation techniques can help you maintain your cool and achieve success in stressful negotiations with opposing counsel.

Keywords: litigation, woman advocate, negotiations, meditation, mindfulness, neuroscience


Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).