“If I Wanted to Learn About Feelings, I Wouldn't Have Gone to Law School.” That was the feature presentation at last December's Program for Spouses. The paper, by Melissa L. Nelkin, professor of law at the Hastings College of Law, UCSF, and also an advanced associate at the San Francisco Psychoanalytic Institute, was discussed by Diana Gittelman, a New York attorney specializing in matrimonial law, and Samuel Dimon, a partner in the New York and Washington law firm of Davis Polk & Wardwell and a specialist in federal taxation. He is also the brother of Jim Dimon, recently appointed training analyst at the San Francisco Psychoanalytic Institute.
Nelkin took as her subject the process of negotiation, a skill she has been teaching to attorneys and law students for over a decade. Her interest in the subject was piqued by her consistent recognition that different negotiating pairs, provided with the same factual basis, come to different negotiated results by very different means. Some negotiators “play their hand” immediately; others “play their cards close to the vest.” Nelkin determined to understand the negotiating process, how it unfolded, and how an attorney might develop better negotiating skills.
In her presentation, Nelkin discussed the widespread resistance to introducing psychological concepts, much less psychoanalytic ones, into the legal arena. This, despite the obvious fact that negotiation is as much a human as a legal process. She emphasized that by “developing a capacity for self-observation, the negotiator becomes more aware of the dynamics of the situation, of how her and her opponent's responses to each other and to the conflict embodied in the negotiation affect what they both do and say on behalf of their clients.” With an increased awareness of the psychological aspects of the negotiation process, attorneys are better able to modulate and take into account their own aggressiveness and anxiety, and to bring those drives and affects into accord with their clients' best interests. She noted that “a lawyer who has developed some understanding of her own reactions to conflict will be better able to tolerate the client's feelings and to incorporate them with the legal facts in seeking a satisfactory resolution.”
Taking the “prisoner's dilemma” as a starting point, Nelkin drew the conclusion that enlightened self-interest calls for a strategy of cooperation among attorneys. She addressed the tendency of attorneys to deny their own wishes to exploit and take advantage while projecting such motives onto the opponent. An interesting situation develops when opposing attorneys act in a similar manner. These mutual projections, easy to identify in the classroom, are much less obvious in real-life situations. But when attorneys begin to ask whether their own convictions about their opponents may be internally generated, they are more likely to test the accuracy of their perceptions.
Nelkin noted that once she broaches the idea that her students' internal reality has a significant effect on their expectations in the negotiating arena, those students who have not already fled the room tend to become intrigued. The tasks at hand for a law student, or even a trained attorney, are many. Having relied for so long on “the rule of law,” they must now unlearn their reliance on rules and develop a more intuitive approach to negotiating. Nelkin reminds her students that negotiation is a process in which we have all participated since early childhood, and of which we all have a reservoir of knowledge that can be tapped. Students are invited to write about the negotiating styles in their families of origin, as well as to look at current negotiations in both their personal and professional lives. Cultural differences abound. A first-generation American was criticized by her Korean-born parents for being “too American” to understand the “unspoken” messages that characterize their speech. She noted that her own negotiating style suffered from a similar indirectness. A man who characterized his father as intellectually and physically harsh realized that he anticipated hostility in any negotiation and tended to remove himself from situations that too closely resembled that of his childhood. As in analysis, Nelkin noted, making connections of this sort is only a first step toward actually being able to behave differently in the heat of negotiations, but a first step it is nonetheless.
The cultural aggressiveness of lawyers in American society was given particular attention. Lawyers, as society's “hired guns,” are expected to shoot first and ask questions later. Such aggressiveness is a cultural expectation but may also unconsciously be part of what attracts individuals to the legal profession in the first place. How easy it is for matters of oedipal victory, shame, and humiliation, as well as character traits such as toughness or stubbornness, to unconsciously affect what might otherwise be a rational and goal-directed negotiation. Nelkin noted that in her experience most students find their increased understanding of what goes on within themselves during a negotiation to be as tangible a benefit as the results they achieve. They tend to develop a better integration of what they regard as subjective or emotional with their ostensible practical goals. One student noted that by attending to her internal experiences, her “personal wants and needs are less likely to take on the force of compulsions, or work against me in unpredictable ways.” As in any psychoanalysis, the greater one's understanding of internal processes, both conscious and unconscious, the better able is one to mediate between internal demands and those of external reality.
In her discussion, Diana Gittelman agreed that resistance to the human dimension of the attorney's work is built into legal training. While law school finely hones the ability to reason from abstract legal principles, students are never asked how they feel about the outcome of a case. Gittelman referred to the selection process, conscious and unconscious, that matches clients with their attorneys; when the “fit” is bad, it can be disastrous. Attorneys can benefit greatly from insight into their own motivations, using it to attune their behavior as best they can to the personality and needs of clients. Matrimonial law, especially, has a propensity for evoking strong feelings from everyone involved. Property settlements, financial arrangements, and child custody can evoke passionate personal feelings, conscious and unconscious, in attorneys representing clients. When attorneys are unable to separate their personal feelings from the wishes of the client, mayhem can result. A happier outcome was seen in an example Gittelman gave of a negotiation in which she
Kenneth I. Gottlieb, M.D, a Member of the San Francisco Psychoanalytic Society, studied at Yale Law School, has taught at U.C. Berkeley School of Law, and teaches forensic psychiatry to psychiatric residents.
and the opposing attorney appeared to be deadlocked. During a lunch break, however, they discovered they had much in common. They had attended the same law school, had begun their careers in the same city, and now had relocated to the same area. Reminiscing over mutual acquaintances and old law school professors, these attorneys forged an alliance that permitted them to approach their case in a different spirit. Gittelman also made a sensible pitch for mediated—as opposed to litigated—divorces, which, by eschewing the adversarial stance in favor of problem-solving techniques, increase the chances for conflict resolution. Gittelman applauded Nelkin's attempt to bring a psychoanalytically informed approach to the negotiating table and joined her in the hope that by making students aware of psychoanalytic principles, and by encouraging them to become aware of the impact of their life histories on their personalities, they will be more sensitive to their clients and bring a more human dimension to the practice of law.
Samuel Dimon recalled that in law school he had never formally been taught negotiation techniques. Nevertheless, he noted, he has been learning such techniques since early childhood—which techniques work at which time, and which are likely to backfire. He remarked also that unlearning a reliance on rules is necessary to successful negotiation. Also necessary is the understanding that certain things, such as self-respect, are non-negotiable. Law school, Dimon said, could use more of the kind of mentoring that Nelkin discussed—engaging students on a personal level, as well as intellectually. He noted that professors often enough are available when sought out, but that this does little for students who are more diffident.
With regard to his mentoring of young lawyers in his firm, Dimon pointed out that it is important to be encouraging, to share responsibility, and to offer constructive criticism. He tries to include younger associates in negotiations, taking them to meetings, having them participate in telephone conferences, and offering his observations of behavior. He delegates areas of responsibility, thereby allowing associates to “own” at least part of the project in which they are engaged. Eager and thoughtful young attorneys, he thought, would benefit greatly from Nelkin's approach. A young attorney who has not developed a capacity for self-awareness and sensitivity to others will likely harbor lingering unexpressed feelings—disappointment, confusion, anger—in reaction to criticism from a senior member of the firm. By contrast, with greater self-awareness and tolerance of one's limitations, a reasonably self-assured and intelligent associate might learn to offer constructive criticism in an inoffensive manner even to a partner in the firm. Thus, while the legal profession in general tends to be adversarial and rule-bound, there is room also for collaboration and creativity.
In the general discussion, Nelkin agreed with Gittelman that attorneys are less likely to become embroiled in disputes over fees if their clients are more carefully heard. Gittelman noted cogently that lawyers should learn the importance of dealing with their clients' interests rather than their positions.
Irving Ladimer, former research director of the American Arbitration Association, said that as an attorney he had worked as an arbitrator and that lawyers are beginning to recognize this field. He emphasized that negotiation is more than just “chitchat”; it is a discipline in itself, a process by which parties voluntarily decide on a mechanism by which to resolve disputes. In mediation, both parties, through use of a facilitator, come to a resolution through negotiation. In arbitration, they turn it over to a third party.
A member of the audience asked how, in the classroom, one can gain much headway with problems that can be very deep-seated. Nelkin replied that over the course of a semester students do what they can; frequently they take the opportunity to significantly change their ways of thinking and behaving.