Empathy, Neuroscience and Divorce

We lawyers know what divorce is legally. But do we understand what it does to the individuals involved and how can we help? According to neuroscience, divorce is the severing of primary relationship bonds in a small group system. It thwarts satisfaction of basic human needs. According to Maslow, those needs are a pyramid, the bottom of which is physiological (food, shelter, clothing, financial). This is the only level of human need that the courts now address. Above the physiological is love and belonging - emotional safety; then is esteem and at the top is actualization.
Of the three areas of the triune brain (reptilian, limbic and neocortex), the damage is done to the limbic area. The limbic is the mammalian brain of emotion, live birth and long parenting. It is the social bond of the small group, of the family. It is an emotional brain. Emotionality is a universal communication system that predicts behavior, changes us and activates change. The earliest reptilian emotions of fear, anger and disgust were to protect the single organism. The limbic emotions of love, nurturance, grief and guilt regulate and maintain family. Court rules mask and stuff down feelings, how we feel is beside the point. But if you feel something, that is information. It's a sensory organ.
Empathy is being aware of feeling the way you do, knowing what you know and knowing the difference between self and other. Stimulating emotions helps you know these things. The point is to feel emotions and not be overwhelmed by them. "Feel it somewhat."
Empathy is a neural facility like vision or speech, a complex form of psychological inference. Lawyers are typically disembodied, intellectual (unflattering, but referred to as "wet computing machines"). The client is suffering from the neurophysiology of relationship and loss. Relationships are physical. Families are a complex web of physiological regulation that begins in the womb. Relationships regulate physiology between competent adults and relationships regulate brain development.
With loss is grief. Grief feels like physical pain. Going through the three phases of grief - protest, despair and acceptance- is long and debilitating. It's important for the professionals working with families in divorce to be aware of the signs and needs for interventions - and to build the capacity for empathy.
How can we become more empathic? Understand the 3 aspects of empathy.
  • 1. Modeling - Modeling is a natural facility that we can improve. Behavior is contagious. The brain is always copying others, but without us necessarily being aware of it. This is how we affect others, even without direct contact. The insula is the part of the brain that handles visceral sensations. We can develop more sensitivity to this. The amygdala handles negative emotions of anxiety, fear, irritability and anger. Empathy begins with covert modeling or mirroring. We can practice copying what others do in mode of expression - body language, hand movements, tone of voice, trying to copy their every movement and sensation. That way we feel like we are the other and can feel their visceral sensations. The key is to attend to our visceral sensations and to attend to other's body language. We learn about others that way. We get into their skin, so to speak. This can change the other person as well. They will unconsciously model you.
  • 2. Self Projection - This is point of view. It's different for everyone. Try to understand the other's perspective and see the world the way they do. "What would their world have to look like for this belief to make sense? How must the world look to them?" To hear beliefs that are different from ours is actually physically painful. Getting used to that painful perspective gives further understanding to other.
  • 3. Balance of Self and Others. Fine tune the balance of self and other by alternating perspective. This must be in balance. Hot is too emotional, then can't brake it. Cold is no emotion and callous. This is not an intellectual process of learning and leading or telling. This is an embodied function of modeling and exchanging self and other. It's important to be aware and not be tricked by a psychopath, sociopath or narcissist.
Why is neuroscience relevant to law practice? Because lawyers are in the human being business. Emotions are a big part of being human and working with others. Lawyers need to become more comfortable with emotion and legal process needs to become more accommodating, if lawyers and the legal system are to remain relevant. Everything matters. "Attend" (pay attention) to everything.
Empathetic skills help people get along in relationships and increase happiness. Empathy also gives information which allows computational power needed to get along in the larger group. Without it, the larger group can't get anything done.
Dr. Thomas Lewis gives some tips on how to get better at empathy:*
  • Read. People are fascinated by stories. Most of what people talk about in conversation consists of nothing but stories about other people. From a neuroscience perspective, the reason stories are so popular is that stories are practice for life: when you hear stories, you learn in an efficient, safe, cost free way about human behavior - how people act, what makes them do what they do, and so forth. So to hone your own knowledge of how people act and what makes them tick - read good stories.
  • Watch. Many classic movies make good story-telling.
  • Listen. Listen to people you disagree with to hone your ability to imagine points of view foreign to your own.
  • Self-Scan. Every now and then, as you go through the day, stop and see if you can tell what your body is feeling. Check out your facial muscles - which ones are tense, which ones are relaxed, what expression the whole face is displaying. Check out your posture. Check out your visceral sensations - heart, chest, abdomen. Set your iPhone to ring an alarm 5 times a day to remind you to check. It's odd, if you try this, how often you can find your body displaying and registering cues to states you did not realize you were in.
  • Stealth-Scan. You don't have to tell people you are doing this, but watch their emotionality. Check out their facial expressions, body language, tone of voice. Even better, mirror their body language in stealth mode. If they touch their head, touch yours. Sounds sill, but it works to help get you attuned to where they are. Try it - the results may surprise you.
  • Switch Bodies, Then Switch Back. When you are talking to someone, spend a few seconds imagining that you are that person talking to you. You have their position, their problems, their assets, whatever they may be, and now you (in the role of that person) are talking to you (the real you). Then switch back to your own perspective. Switch out; switch back.
  • Map the Social Space. In meetings and groups, see if you can tell who is taking up what fraction of the social space. This can help you get attuned to watching for Self-Other balance, and who's good at it and who is not. Look for the places where people occupy too much space in a way that seems not to help, and look for the places where people elbow others out of the way, emotionally speaking, in order to get to the spotlight.
  • Copy. Because my brain (and yours) constructs an internal model for what the people around me are doing, you can increase your skill level simply by watching an excellent exemplar in the skill area you are trying to increase. Strangely enough, all you have to do is watch, and your brain takes care of the rest. If you are trying to make your tennis game better, it actually helps simply to watch really good tennis players. It doesn't matter if you can understand what they do or why they are doing it. Just watch. Your brain models the activity and some of that internal models stays with you. So choose carefully (very important), but spend time watching someone who is very good at doing the thing that you would like to be good at. In this case, someone who is good at empathic skill.
The law is evolving to incorporate this information and these skills in the form of interest based negotiation, mediation and collaborative law.  It is the new advocacy described by Julie MacFarlane in The New Lawyer.  The law is dynamic and is responding to an evolutionary movement towards a realization of holistic, interdependent interconnectedness that science and intuition know.  Many people are working hard to bring about this change - moving beyond the 18th century theory of law to incorporate a reflection of human nature.
*Taken verbatim from an article by Thomas B. Lewis, MD entitled "Empathy" 2009
These are notes taken by Dona Cullen from a 3 day collaborative law training entitled "Neuro-Collaboration" taught by Pauline Tessler and Thomas Lewis. Pepperdine University and Vermont Law School; East Coast Professional Skills Program; Woodstock, Vermont, Oct. 2009
Note:  For another view of empathy which incorporates and goes beyond the scientific view stated here, see The Art of Happiness in a Troubled World by HH the Dalai Lama and Howard C. Cutler, MD (2009)  While acknowledging the usual way to develop empathy is "perspective taking" - putting yourself in the shoes of another -or "relative" empathy, the Dalai Lama introduces the concept of "ultimate" empathy.  Ultimate empathy is based upon the recognition of our common humanity.  This is developed through the practice of continually reminding ourselves that all beings have the same desire - to be happy and be free of suffering.  This common ground is basic truth and requires no intermediate step of imagining or mirroring.  The authors posit that with just this change in perspective, recognizing our common humanity, the negative emotions of anger, violence and hatred can be quelled on a personal, relational and societal level.