Of course that’s just a saying. What I’m really getting at is how psychology fits into law. If you’re an avid reader of this website (and thus a big fan of psychology), you know psychology plays a part in pretty much everything people do. So I decided to get specific by interviewing Mark B. Baer, Esq. Let that fancy title hit you now, because it only gets more impressive from here.
Mark, who I found out is not only accomplished in law but also an accomplished author, learns about clients’ relationships and how to best interact with them to solve their problems. This involves a lot of empathy and understanding how others think, as you will read below.
Most people I interview are doctorates, professors, or researchers of psychology, but you’re an attorney, mediator, and consultant. There are certainly countless ways, but what is one specific way that psychology plays a part in your work?
The more I understand the nature of human conflict and what makes people tick, the better able I am at helping them resolve their differences.
What was your major in school? Did you take any psychology classes yourself?
My major in college was Economics/Business, which was the closest thing UCLA had to an undergraduate business major. I took one psychology course to satisfy a general education requirement.
Do you think it is possible to work in law without having some degree of interest in psychology?
Yes, without a doubt. However, plenty of lawyers believe that “holding a client’s hand”, “offering them a tissue or their shoulder to cry on”, “offering words of comfort and encouragement”, and “serving as a sounding board” means they have an interest in psychology. In fact, many people refer to situations in which clients insist on giving their lawyers a very detailed backstory of their perception of the cause of their conflict, as using their lawyers as therapists. From everything I know, that’s not psychology. Furthermore, wanting to help clients by “winning” their cases under a win/lose paradigm isn’t psychology either. Lawyers who have a sincere interest in actual psychology and have attained a solid understanding of some psychological concepts handle their cases very differently than those who don’t.
In “Authoritarianism Comes with a Huge Price”, you say you had many reasons for changing your practice from litigation to mediation, specifying some as “issues with regard to compliance of court orders rendered after hearings and trials, as well as ‘agreements’ reached through the threat of court intervention.” What were some of the other reasons?
Frustration over pervasive and increasing incivility within the legal profession, which serves no purpose in helping clients solve their problems – quite the contrary. Understanding that “winning” isn’t problem-solving. A realization that whether a legal matter is handled in a constructive or destructive manner is determined by “the lowest common denominator”, irrespective of the ultimate “winner” under a win/lose paradigm. An increasing understanding and appreciation of the serious psychological harm typically caused by litigation. An increasing understanding of human bias and its impact in the outcome of a litigated case. My concern for the innocent victims of a contentious divorce or separation – the children. The way in which I define “success”, which has nothing to do with “winning” or “competing with the Joneses”; rather, it has to do with gratitude for that which I have and surrounding myself with people love and accept me for who I am, warts and all. An increased self-awareness, gleaned through life experience and therapy. In a word, “perspective.” Realizing that truth in the idiom “Everything’s a matter of perspective.”
Do you find that mediation is more personally rewarding?
Without a doubt! Working as a mediator closely aligns with my core values and how I define them. Two of the values that speak to me the most and without which I would not be who I am are “fairness” and “making a difference.” In addition, I define mediators as “peacemakers”, not “deal brokers”, and lawyers as “warriors” and “gladiators.” As I began realizing that “legal justice” is not the same as “fundamental fairness”, I lost my passion “making a difference” through it.
As someone who is very interested in and concerned about social justice and acceptance (or as I used to call it, ‘tolerance’), your article, “Is Teaching Tolerance the Solution or the Problem?”, honestly served as a revelation for me. Why do you think people confuse the terms tolerance and acceptance?
First of all, it’s incredibly rewarding for me to learn that one of my articles served as a “revelation” for you. Thank you for sharing that with me. Secondly, confusing of meaning of terms is by no means limited to “tolerance” and “acceptance.” A great deal of conflict stems from misunderstandings, much of which has to do with the reality that we each interpret things differently, including terms. I’ve long said that I’m more about substance over form. I am referring to the value I place on conceptual knowledge and understanding, as opposed to terms, the meaning of which is subjective. However, I also recognize that the meaning assigned to words influences human behavior. I wouldn’t take issue with people confusing the terms “tolerance” and “acceptance”, if they understood the underlying concept. The problem, in my opinion, is that they don’t have such understanding. Furthermore, we live in a very judgmental society. Tolerance involves judging, whereas acceptance doesn’t. Along those lines, if a person subjectively defines “tolerance” in the same way that I define “acceptance”, we’re aligned conceptually. In fact, the following is a quote from my article titled Empathy and Decision Making: “Ultimately, we both agreed that the terminology was not important, considering that we both had a very good understanding of the underlying concepts themselves.”
Moreover, people confuse the concept of “acceptance” with “approval.” In fact, the first comment someone posted in response to that article was “Tolerance is not enough. YOU MUST APPROVE!!!! And if we suspect your approval is not sincere enough or enthusiastic enough, we will notice and punish you.” There is a difference between “acceptance” and “approval.” One has to do with accepting a person for who they are and the other involves whether or not you personally approve of their behavior. This comes down to separating a person from their behavior. Another problem centers around the fact that many people confuse what’s part of a person’s self with behaviors, which are changeable. And yet another issue stems from people who believe that the truth, as they understand it, is universal, and that their perception of reality is reality.
In the same article you describe “empathy conversations” as an effective tool for combating prejudice. Could you summarize what this would sound like or how it works?
Certainly. First of all, “empathy conversations” can lead to a deep emotional connection among those involved. They involve a number of skills and therefore typically require training. As with anything, the skill-set among people will vary and there is always room for improvement, regardless of the level of your skills. Secondly, the ability to develop a deep emotional connection requires that those involved be authentic and vulnerable with each other, which requires a sense of trust and safety that you’re in a judgment free environment. As such, it involves building rapport and trust through both verbal and non-verbal communication. A willingness to share an actual emotionally significant story from your personal background and life experiences which shaped your perspective on a particular issue causes the other person to feel safe in reciprocating. At that point, you may inquire about their perspective, while demonstrating in a non-judgmental manner that you sincerely identify with and care about their feelings and life experiences. Under such circumstances, people are much more comfortable being open and honest with you.
You should engage in active listening (empathic listening) while they’re speaking. In so doing, you tune into and respect their feelings and develop a clear understanding of their perspective and their background and life experiences that shaped that perspective. The focus is on the participants’ actual background and life experiences that shaped their opinions, not the opinions or beliefs themselves. To the extent that they don’t have any personal life experience which shaped their opinion or belief on a particular issue, inquire about otherwise relevant and emotionally substantial real lived experiences they have had. A sincere non-judgmental curiosity about such things is central to perspective taking. “Empathy conversations” can move people from theory and judgment to reality. As social science researcher Brene’ Brown says, “empathy is incompatible with shame and judgment.” In other words, it’s impossible to be empathic toward someone you’re judging. Therefore, it’s essential that we move people away from theory and judgment.
I interviewed another writer for PsychologyToday.com, Nate Kornell, about empathy and asked him why people don’t try harder to empathize with others. Part of his response was that it’s simply much easier to judge people instead. What are your thoughts?
Empathy is a complex concept and it’s an aspect of emotional intelligence, which involves skills that can be developed and improved upon. In addition, we don’t choose our personality type and some personality types are naturally more empathetic than others. Regardless, many people perceive empathy as a feminine trait and a sign of weakness, even though it’s neither of those things. Furthermore, in our society, we tend to focus on hard skills, which involve a person’s technical skill set and ability to perform specific tasks and we tend to disregard the importance of people skills, aka soft skills. It is also important to understand that parents teach their children social skills and that children learn from modeling behavior, not from advice that’s inconsistent with the way in which parents actually behave. If a child is raised by at least one parent who engaged in what Dr. Regina Pally refers to as “reflective parenting”, the child will grow up realizing that their perspective is not “the perspective” and that their truth is not “the truth.”
It takes courage and bravery to admit that you don’t have all the answers and that you could (heaven forbid) be wrong. As Pally says, “when we’re not reflective, we tend to be reactive.” While experiencing fear or anxiety, we’re in a reactive state. It’s also important to recognize that many people experience anxiety as a result of ambiguity, uncertainty and not knowing something. Meanwhile, as Dr. Daniel Siegel explains, when we are in a reactive state, “…we distort what we hear to fit what we fear.’ This causes us to hear (which is a physical act) without listening (which is a neocortical, cognitive event).” I can go on and on about the reasons why people don’t try harder to empathize with others, but at the end of the day, I’d have to agree with Nate Kornell that it’s simply much easier to judge people instead.
Finally, besides working at your practice, you’re a writer for Psychology Today, you make television and radio appearances, and you’ve authored or co-authored several books. It’s no surprise you’ve achieved Southern California Super Lawyer status, but how do you find the time?
First, I’d like to thank you for acknowledging some of my achievements. I think the answer lies in those two core values that I previously mentioned speak to me the most and without which I would not be who I am, which are “fairness” and “making a difference.” Once you discover your passion, it’s important to make time for it. My willingness to make that time also comes from what “success” means to me, and the fact that I happen to have a wonderful and extremely supportive spouse. I’ve learned a great deal over the years and continue learning each and every day, have found my voice and outlets for my voice, and make the time to do my part to make the world a better place.
Baer proves that he does not need a degree in psychology to have any credibility about the topic of empathy. He works professionally with people to understand their relationships and how to best solve their problems with the same skill as any psychiatrist might. But I didn’t write this just to show how one can have deep psychological knowledge without directly working in psychology, I wrote it because Baer’s thoughts on empathy and the technique of empathy conversations are genuinely intriguing and important. I think that truly listening to someone you may disagree with is a very easy method to accept and understand their thinking, a method we can all practice every day.
Mark B. Baer, Esq. is an attorney, mediator, collaborative law practitioner, conflict resolution consultant, writer for psychologytoday.com, and author based in the City of Pasadena, County of Los Angeles, California. He has been recognized as a Southern California Super Lawyer since 2012, and was elected a Fellow of the American Bar Foundation in recognition of exemplary dedication to highest principles of the legal profession, commitment to the welfare of society, and support for the ideals, objectives, and work of the American Bar Foundation in 2017.