Keeping Litigation out of Arbitration

Our Approach

The following articles provide detailed introductions to the philosophy and methodology of ProActive arbitration.

Baseline Awareness Exercises

 

1.Overview

At its core, enhancing one’s baseline awareness is about becoming practiced at observing the object of one’s attention—simply noticing the contents of one’s mind.

Our consciousness is populated by a relentless parade of thoughts and reactions to the world around us. Much of this parade proceeds without our conscious control. How often do we find ourselves “lost” in thought, without any conscious awareness of the associations and mental leaps that have carried us toward a particular idea? The goal of awareness exercises is to practice directing active attention toward a specific stimulus and then to notice the thoughts and reactions that arise, so that the power of those reactions to carry us away from the stimulus is diminished.

When you practice these exercises, you are training yourself to notice when a reaction or pre-judgment arises, and to return your conscious mind to the activity of active, non-judgmental listening. You are training your mind to separate the activity of listening from the activity of analysis. Cultivating this habit will enhance an arbitrator’s ability to listen impartially in the context of the arbitral process, and it will enhance her ability to identify pre-judgments as they occur in every aspect of daily life.

The following are examples of exercises designed to be practiced on a regular basis. It is by no means an exhaustive list. Each individual is different, and will find different exercises to be more effective in the context of her own life. Try these exercises, and use them as templates to develop your own Awareness Exercises that fit into your daily routine.

2. Exercises

Many of us spend some portion of every day in a car, making it an ideal context for integrating an exercise into a daily routine.

A) Random Radio Station

On your morning commute, turn your radio to a random radio station or podcast to which you do not normally listen. Pretend the radio is a witness in an arbitration.

If you don’t normally listen to it, there is probably a reason. Perhaps you find the music or subject matter uninteresting or offensive. Perhaps you don’t particularly like the sound of the instruments or the speaker’s voice. The point of the exercise is to recognize any such pre-judgments that arise, and to re-focus your attention on the sound of the radio itself, listening as if it is testimony you are hearing for the first time.

As you listen to the radio reactions will inevitably arise: “I hate this style of music!” “What a beautiful song!” “This speaker is a moron!” “That point makes a whole lot of sense!”

Having these sorts of reactions is not only a natural part of the human mind, it is a practice that is actively encouraged as part of our education. We are encouraged to be critical thinkers, to cultivate a healthy skepticism, to look for flaws in a line of reasoning, and to form thoughtful opinions about the things we hear.

As arbitrators in pursuit of impartiality, however, such ingrained habits are at cross-purposes with our goal of hearing testimony as a “blank slate.” The harder we are thinking, the less we are truly listening. Scientific studies demonstrate that when our mind is engaged in complex mental activities (such as scrutinizing evidence and evaluating arguments), our powers of perception are stunted.

The goal of the exercises is NOT to prevent all thoughts and reactions from arising in the mind. This is impossible. Rather, the goal is to prevent your attention from engaging with the reactions that arise, to prevent your mind from following those reactions down a mental corridor, away from the testimony itself, and into the realm of your own analysis.

To accomplish this, simply label a reaction when you notice your attention has drifted away.

-Say the word “feeling” in your head when you notice yourself having a strong positive or negative reaction to the radio.

-Say the word “thinking” in your head when you notice your attention has drifted away from the sound of the radio itself.

In this way, the exercise will help you develop a new habit, whereby more of your attention is directed at the testimony itself (listening) and less attention is siphoned off by your reactions to the testimony (analysis).

B) Bodily Sensations

Most of us try to find some productive way to “fill” the time that is “lost” to our morning commute by engaging in a secondary activity (in addition to the primary activity of driving). We absorb new information from a podcast, or we turn the commute into leisure time by listening to music we enjoy. We try to get work done by making a business phone call, or we invest in our relationships by making personal phone calls.

In the Bodily Sensations exercise, there is no secondary activity. The goal is to devote all your conscious attention to the sole activity of driving. Simply observe your perceptions with curiosity, and without judgment. When you do this, you become aware of a wealth of sensory experiences: the feeling of the steering wheel in your hands, the feeling of your foot on the pedal, the feeling of your body in the seat. There is the sound of your tires on the road, the smell of your upholstery, and the endless sights of the world around you through your windshield. There is the sensation of breath moving in and out of your lungs and your nose.

Just as thoughts inevitably arose in reaction to the “testimony” of the random radio station, thoughts will inevitably arise in reaction to your sense experiences. Perhaps you observe a dark cloud in the sky, and you begin to think about the possibility of rain, and how the rain will affect your plans and your mood. Perhaps you observe a feeling of physical discomfort in your back, and soon your mind is wandering among thoughts of scheduling a massage, plans to exercise more, even reminiscences of younger days when your body was stronger and more capable.

When you notice your mind has begun to wander, simply say to yourself “Thinking” and return your attention to your bodily sensations. In this way, you will become practiced at noticing when your attention has drifted away from the primary task of perception. The point is not to prevent your mind from ever wandering, but to practice noticing your reactions to external stimuli. In this way, you will develop a habit of identifying when your own judgments intrude upon the activity of perception, and returning your attention to perceiving the stimuli itself.

This is the frame of mind you want to inhabit when you hear testimony in arbitration—a frame of mind in which your attention is focused on hearing the testimony itself. A frame of mind in which the reactions and judgments that arise are recognized as such, and then allowed to drift away, so that perception is not derailed by thinking.

C) Half speed

Perform a regular chore at half the speed you normally would, directing all your awareness toward the sensory experience itself, and away from your reaction to the experience. For example, when most of us wash the dishes, we rush to complete the task as quickly as possible, the mind racing with thoughts of all the things we’d like to do as soon as we’ve finished washing. In this exercise, the mind is focused on the feeling of each dish in the hands, the heat of the water on the skin, the sound of the water coming from the faucet.

This exercise can be applied to all manner of tasks, from physical exercises to domestic chores. The obvious “cost” of such an exercise is the extra time you spend completing a task. The benefit is in cultivating a discipline of awareness, a mental habit of directing your conscious attention exclusively to a single stimulus. In the context of arbitration, the stimulus is the witness giving testimony.

3. Further Exercises

All three of these exercises involve directing one’s attention to an external stimulus encountered in one’s daily life (the radio station, the act of driving, the sensory experience of washing dishes) noticing the thoughts and reactions that arise, and returning the attention to the stimuli.

There are countless variations and opportunities to practice this skill throughout the day. A good strategy for beginning is to pick 2-3 exercises to perform regularly, and to schedule them in a journal or a planner as you would any other commitment. Stick with the same exercises for several weeks before substituting for a new one.

What follows is a list of further exercises. While the descriptions are more concise, the same principles apply as those outlined in the exercises above.