SECTION ARTICLES AND NEWS Mindfulness: Finding a Bridge to Common Ground in These Polarized Times

By: Gisela M. Munoz, Associate Counsel, Florida Region, D. R. Horton, Inc.1

This is the final article in a three part series submitted by Gisela Munoz. Click here to read the first article From Mindfulness to “Findfulness”: Finding Purpose and click here to read the second installment Finding Peace: Less Stress is Within Your Reaction and Reach.

I. Introduction

In recent times, there seems to have been an increased polarization in our society. Undoubtedly, there have always been opposing views. Let’s face it, without them, there would not be a need for us attorneys! There have even always been conflicting positions at the extremes. That said, the ability to bridge the gap and find common ground and connection is becoming more difficult lately.

Some of you will immediately identify this in the political arena, where passing bipartisan legislation has seemingly become almost impossible. However, there have been reports in the past few years that this polarization has been permeating other facets of our lives, including all the way into our homes and personal relationships. As such, you may have experienced this widening gap and divisiveness in other areas of life, including in your real estate legal practice.

Mindfulness practices – particularly compassion exercises –can help us find a connection, even with difficult opposing counsel, and come to agreement. Ultimately, this may not only help us comply with the rules of professional conduct and achieve our clients’ goals, but also help us bring society back to a healthy balance.2

This is not to suggest that we should not have the fortitude to hold our ground on matters regarding our principles. Rather, “[r]eal strength lies in being able to yield when necessary, while understanding and staying true to your own core values. . . . [But a]ssertiveness without compassion is aggression.”3

If you are not familiar with mindfulness, keep in mind that many companies, sports team, and even the U.S. military have offered mindfulness training. These are not organizations that are considered as lacking “strength,” and they are not offering the training as some sort of appeasement, but rather “to enhance the performance of their employees, soldiers, and players.”4 In the words of Judge Alan Gold, a senior U.S. district court judge for the Southern District of Florida, mindfulness does not require you to “give up your edge. . . . What I am suggesting to you is no more than how martial arts masters deal with moments of intense conflict. . . .”5

Moreover, what we are dealing with in recent times is not a question of people adhering to their principles, while honoring the principles of others and finding ways to come to agreement when necessary to thrive, or even to survive. Rather, it is a toxic division between people that does not advance anyone’s cause and that causes damage – damage to our goals, emotional damage, and ultimately other long-term damage to our society that is yet to be seen.6 Instead of remaining divided, we can use mindfulness to build the bridge that will bring us back to finding solutions together.

II. Mindfulness and Its Effects

Mindfulness is not intended to be used to accomplish any specific objective, even though it turns out that mindfulness can be a helpful tool in achieving certain goals. So, what is mindfulness? Mindfulness is “paying attention in a particular way: on purpose, in the present moment and non-judgmentally.”7 The Mindfulness Based Stress Reduction Program, developed initially by trailblazer Jon Kabat-Zinn, places importance on curiosity in terms of how to approach the way we pay attention. In that vein, other mindfulness researchers have proposed another definition of mindfulness: “the self-regulation of attention with an attitude of curiosity, openness, and acceptance.”8

As I have stated above and in other articles and presentations, mindfulness should not be practiced to achieve other purposes, but rather it is its own end-goal. Its purpose is to keep us in the present moment, and, by doing that, it may result in beneficial side effects. That said, however, in this article, I am suggesting that we use mindfulness practices to attain those beneficial side effects. The key will be to remain in the present moment – engaged in mindfulness alone, without thought of any other goal – while practicing the mindfulness exercises.

So how can mindfulness help with the extreme divisiveness in the field of real estate law? Let’s begin with the problem of polarization in our real estate practice. In the last few years of transactional practice, there has been a shift to more prolonged, difficult negotiations, with some parties taking extreme positions that are sometimes difficult to justify under the auspices of reasonableness. You may also have seen this if you deal with real estate disputes, in terms of negotiated settlements. Beginning with a radical stance is not necessarily ultimately an issue (although the farther apart you start, typically, the more difficult it is to come to agreement). But being immovable in such a stance can be a problem, particularly when you are trying to make a deal with someone.

Further, this entrenchment in our own positions is coming at a time of increased violence in our communities. From attacks on law enforcement officers to aggression against protesters, from physical threats to judges to the intimidation of other justice officials, from school shootings to armed incursions into government buildings, we are seeing neighbors assault neighbors. Some studies have been done on this, and it appears that technology – including when used for social connection – has caused us to lose some of our true connection to others in the real world. For example, it has been found that, even when we “connect” with others by video conference, as we started doing more often during the COVID-19 pandemic, we are not able to take social and emotional cues from facial expressions via video in the same way as we do in person.9 Other factors may also be at play in creating a disconnect that allows people to treat others less humanely. This disconnect has allowed us to stop recognizing the humanity in our fellow neighbors, in some cases to the point of allowing violence. In other cases, the disconnect may not lead to violence, but can have a negative effect nonetheless.

This has also been found to play a role in the entrenchment in our positions. Social distance allows us to take even small differences and divide our society based on it. We identify with our one characteristic or viewpoint, and we then categorize the people who are even slightly different as foreign or alien to us – as being from a group with which we cannot identify. Essentially, we burrow into our position, equating our sense of self with it, to the point of classifying those with another perspective as “other” or even inferior.10 That, in turn, creates a vicious cycle, allowing us to continue to cling to our position, without considering the standpoints of those “others.”

“Mindfulness can […] help us [by shifting] our perspective in at least two ways: (1) by changing our view of things, once we are able to move our thought processes away from certain automatic knee-jerk reactions, and (2) by increasing our awareness of alternatives (i.e., possibilities) that might otherwise have been hidden from us. Both of these paradigm shifts are largely influenced by the parts of mindfulness practice that suspend judgment and encourage curiosity, allowing for open-mindedness, although paying attention on purpose/with intention to the present moment plays a part, as well . . . with the creation of space between stimulus and response.”11 In this way, we may be able to find a way to open our minds with curiosity to the other side’s point of view and see some value in it, finding a path toward it that will still work for our side.

In addition, there are mindfulness practices called compassion exercises or loving-kindness exercises, which are intended to switch our attention from judgment to caring and from isolation to connection.12 These types of mindfulness exercises are geared toward helping us to see other people as they are today, rather than as we expect them to be or as they were in the past. In addition, they help us listen to – truly listen, with the intent of understanding – where they are coming from.

Listening, of course, is critical to connecting person-to-person, but also in our legal practice and from a legal ethics perspective. Obviously, communication is key to any relationship, and listening is a large part of communication. Moreover, the ABA Model Rules of Professional Conduct (the “Rules”) 1.4 and 2.1 require a lawyer to communicate with her clients and provide them with advice. The lawyer has to explain sufficiently, so that the client can (a) make an informed decision and (b) according to the comment to Rule 1.4, participate intelligently in the decision-making.13 If the client is the person with an entrenched or extreme viewpoint, the attorney will need to be sure that she is getting her message across to the client. Mindful listening to the client’s replies can key you into whether or not that is the case, as well as help you find ways to connect. Similarly, listening and maintaining an open mind and an open line of communications with opposing counsel are just as critical, both substantively in getting a deal done, as well as ethically in maintaining professionalism and civility. For example, the Rules have a preamble that states, “A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.”14 Further, the attorney’s obligations include both pursuing her client’s interest, “while maintaining a professional, courteous, and civil attitude toward all persons involved in the legal system,” which, again, includes opposing counsel.15

Failing to listen to opposing counsel falls short of demonstrating the respect required by the preamble, even if opposing counsel is being difficult. Any lawyer who has been to court knows that no judge will accept the child’s excuse that the other attorney “started it.” Thus, even if we are not practicing before a judge, it would behoove us to behave as though we were; after all, we are all officers of the legal system. Moreover, beyond failing to listen, civility may also be called into question depending on the tenor of some communications between opposing counsel. By truly listening, with an open mind, curiosity, and compassion, to the reasons for our opposing counsel’s positions, we may be able to come to agreement, where we were previously at a stalemate – or even in an all-out fracas. Compassion mindfulness practices can help us achieve the civility and flow of communications with opposing counsel that have recently been shutting down during negotiations and help us to re-connect with opposing counsel, who are our colleagues and neighbors – and can even become our allies and friends.16

III. From the Disconnect to Connection: Compassion Mindfulness Exercises

If you would like to try mindfulness, either generally or as a way to achieve more connection and a path to common ground, then I have two suggested exercises in this section of this article. At the end of this section, I will provide you with a more traditional compassion practice. It actually begins with self-compassion before proceeding to compassion for others, which is thought to be the most effective way to begin a compassion mindfulness practice. Despite that, I am going to begin differently here, with a compassion exercise of my own, that is short and that you can practice as you go about your day. (Nevertheless, if you find this first exercise difficult, it may become easier the more you practice the second exercise).

Now, the exercises below may seem simple to you. However, it turns out that they have a profound impact. First, it is important to understand that compassion is not the same as empathy. The brain circuitry related to the two have been found to be different. While empathy can result in pain being felt by the person empathizing, as well as ultimately in exhaustion and burnout, compassion is associated with positive emotions and positive health side effects. When engaged in compassion, the neural connection between the brain and other organs is increased,17 releasing oxytocin and decreasing the fight-or-flight hormones and their negative impacts, such as high blood pressure, heart rate, and inflammation.18

Further from a practical “outside world” perspective, many have noticed how, after practicing for a while, they have experienced a change in their own behavior that was unexpected. Sharon Salzberg recounts how her first week of self-compassion mindfulness exercises (see Section B below) felt mechanical to her. Then something bad happened to someone she knew, and she started recriminating herself because, in that week, she had not even gotten to the part of the exercise that departed from self-compassion to compassion for others. Yet later in the day, she ended up dropping a glass jar that shattered, and she immediately reproached her lack of coordination, but here is how it came out: “You are really a klutz, but I love you.” She was floored at the last part; the self-compassion practices had gotten through, and she was able to acknowledge her klutziness but treat herself with love and respect – with self-compassion.19 Other such stories have been told about unanticipated actions with respect to compassion towards others after engaging in compassion-based mindfulness practices.

On the other hand, rather than thinking that these exercises are simple, some of you may realize that they are more difficult than they seem. You may find it is difficult to maintain your attention without distraction, or you may find that it is difficult to make the statements below with true intention, when doing so with respect to certain people. If that happens, do not be discouraged. Remember that one of the tenets of mindfulness above is to be non-judgmental; that includes non-judgment of oneself. So do not reprimand yourself if your attention wanders, but rather simply bring your attention back to the present moment. Similarly, if you are having difficulty with the phrases below as to someone, do not berate yourself, but rather give yourself time. The more you engage in com- passion mindfulness practices, the easier they should become.

Of course, please take into account any physical limitation that may affect you and adjust the exercises below to accommodate that.

A. Awareness Mindfulness Exercise

My first suggestion requires some self-awareness in your daily legal practice. When you receive a redraft of an agreement from opposing counsel or a counteroffer in an email, notice if you have an immediate reaction to that reply from the opposing lawyer. Was your reaction that the response from the opposing attorney was unreasonable? Maybe you thought it was unfair to your client? Perhaps you even felt some outrage and thought to yourself, “what a jerk”? Notice if you had these – or other such – judgments.

If so, then stop for two minutes and do the following.

~Sit in an upright position that feels stable.

~Allow your gaze to relax so that you are not trying to look at anything.

~Notice the sensations of where your body connects with the chair, the floor, etc. If you detect physical tension somewhere in your body, notice that and perhaps try to release the tension so you feel comfortable.

~Focus on your breathing. Simply notice your breath entering and leaving your body and follow its path through your body.

~Then, with curiosity, ask yourself whether there are other possibilities behind the opposing counsel’s counteroffer. Could there be an intent that you have misunderstood? Could you have understood it correctly, but there is a reason for it of which you are unaware? Could opposing counsel’s hands have been tied, because her client insisted?

~Finally, even if you have not come up with many – or any – such alternatives, can you release the reactive thoughts as against opposing counsel? In other words, can you disassociate the counteroffer from the person who sent the counteroffer? The person who sent the response IS NOT the response. As such, can you, therefore, continue to see opposing counsel as your human colleague – not someone who is “other,” because they sent a response with which you or your client disagree? Rather, can you see that attorney IS someone who, like you, has a client to represent and has a deal to make, and whom you will treat with respect and civility, and whom you will hear out as to why her client needs what was requested in the counteroffer, etc.?

B. Compassion Mindfulness Exercise

My second suggestion is that you try a time-tested compassion mindfulness exercise. This can be done during a break in the office, as well, but you may want to take more time for this and you may want to do this at home or even in a nature environment. When you read the statements below that are part of this exercise, you will see that they relate to people. However, some practitioners further expand the practice to proceed further to include animals and the planet as a whole living organism, with the thought being that compassion for the environment (i.e., environmental/climate awareness and responsibility) can even be enhanced through these types of mindfulness practices. Thus, sitting outside in nature when engaging in this compassion mindfulness exercise would be perfectly “natural” – pun intended!

Now, the phrases that I am using below are statements used by Sharon Salzberg, a world-renowned meditation teacher, New York Times best-selling author, and co-founder of the Insight Meditation Society, who has focused especially on compassion practices. That said, compassion mindfulness practice works best when the phrases used are particularly meaningful to you. As such, if the statements below do not resonate with you, then replace them with those that do have significance to you.

~Sit in an upright position that feels stable.

~Allow your gaze to relax so that you are not trying to look at anything.

~Notice the sensations of where your body connects with the chair, the ground, etc. If you detect physical tension somewhere in your body, notice that and perhaps try to release the tension so you feel comfortable.

~Focus on your breathing. Simply notice your breath entering and leaving your body and follow its path through your body.

~Begin saying the following statements to yourself, about yourself. (People sometimes ask from whom they are asking the following. The answer is that these are just offerings to ourselves – and, in the later statements, they are offerings to the persons about whom the statements are made).

~May I be safe.

~May I be happy.

~May I be healthy.

~May I live my life with ease.

~Then think of a neutral person in your life, about whom you do not feel particularly positively or negatively, and say the following statements to yourself, about that neutral person.

~May [insert that person’s name] be safe.

~May [insert that person’s name] be happy.

~May [insert that person’s name] be healthy.

~May [that person] live [his/her] life with ease.

~Finally, think of all people everywhere and say the following statement to yourself, about everyone.

~May everyone on the planet be safe.

~May everyone on the planet be happy.

~May everyone on the planet be healthy.

~May everyone on the planet live their lives with ease. 20

Now, after having practiced the above for some weeks, if you are dealing with a particularly difficult opposing counsel or other person in your life, you may use the above practice to help yourself in working with that person. After doing the first step regarding yourself, you might think about a person who has been especially kind to you, and repeat the exercise as to that person. Then, continue with the neutral party practice. Then, finally, think about the person with whom you are having difficulty and repeat the exercise as to that person with whom you are having difficulty.21

IV. Conclusion

In these polarized times, we often hear that we do not have to agree with one another. That is generally true to a point, but we also have to be able to come to agreements, whether that is at our dining room table at home, in our local or national legislative arena, or in our real estate transactions for our clients. We cannot allow ourselves to become entrenched in a position diametrically adverse to the opposing party, self-identify with that position, and then start seeing the opposing party and/or opposing counsel as somehow “other,” whom we simply cannot understand and with whom we cannot come to terms.

This is not to say that we all have to become alike and agree on everything. Rather, we must be able to find common ground in order to bridge our differences and come to agreements that all parties can, not only live with, but thrive with, while respecting our differences. Compassion mindfulness practices can help us build that bridge and walk across it in balance.

Endnotes

1. The views expressed in this article are solely the views of the author, not of the author’s employer or any organization with which the author is affiliated. This article is for educational purposes only and does not contain legal advice or therapeutic advice.

2. The author would like to thank opposing counsel and friend, Terri Sonn, Esq., of Sonn & Mittelman, P.A. in Aventura, Florida, for listening and offering feedback at the time when the author was creating the outline for this article.

3. “Hold Your Ground,” Breathe Mental Health 14 (display until July 8, 2022).

4. Paul Steven Singerman, “The Return on Investment from My Study and Practice of Mindfulness,” The Florida Bar Journal 26 (April 2016).

5. The Honorable Alan S. Gold, “The Art of Being Mindful in the Legal World: A Challenge for Our Times,” The Florida Bar Journal 18 (April 2016).

6. See Susanna Schrobsdorff, “Self-Care Doesn’t Have To Be Selfish: Mindfulness Teacher Shelly Tygielski on Generosity and Well-Being,” Time Magazine (Oct. 28, 2021), available at https://time.com/6110793/ why-self-care-doesnt-have-to-be-selfish-mindfulness-teacher-shellytygielski-on-generosity-and-wellbeing/

7. Mary Elizabeth Williams, “Why Every Mind Needs Mindfulness,” Time Magazine Special Edition: Mindfulness, The New Science of Health and Happiness 10 (2016) (quoting University of Massachusetts mindfulness pioneer, Jon Kabat-Zinn).

8. Ryan M. Niemiec, “3 Definitions of Mindfulness That Might Surprise You,” Psychology Today (November 1, 2017), available at 3 Definitions of Mindfulness That Might Surprise You | Psychology Today.

9. See Peter H. Huang, “Pandemic Emotions: The Good, the Bad, and the Unconscious — Implications for Public Health, Financial Economics, Law, and Leadership,” Northwestern Journal of Law and Social Policy, Vol. 16, No. 2, Article 3, 81, 85, (June 12, 2020) available at https:// papers.ssrn.com/sol3/papers.cfm?abstract_id=3575101; see also Schrobsdorff, available at https://time.com/6110793/why-self-caredoesnt-have-to-be-selfish-mindfulness-teacher-shelly-tygielski-ongenerosity-and-wellbeing/; “Loving Kindness Meditation with Sharon Salzberg,” Mindful Magazine (Feb. 11, 2021), available at https://www. mindful.org/loving-kindness-meditation-with-sharon-salzberg/

10. See Mindful Magazine Staff, “Loving Kindness Meditation with Sharon Salzberg,” available at https://www.mindful.org/loving-kindness-meditation-with-sharon-salzberg/; see also Rhonda V. Magee, “‘If You Plant Corn, You Get Corn’: On Mindfulness and Racial Justice in Florida and Beyond,” The Florida Bar Journal 37, 38 (April 2016). Again, this can be taken as far as to the point of being considered (whether consciously or unconsciously) less than human or disconnected from humanity, such that they can be treated inhumanely, or at least unkindly.

11. Gisela M. Munoz, “From Mindfulness to ‘Findfulness’: Finding Purpose,” eReport 77, at 78 (ABA Real Property, Trust and Estate Law Section (September 2022)), available at https://issuu.com/rptelaw/ docs/ereport-2022-summer/s/16831131.

12. See generally Sharon Salzberg, “Why Loving-Kindness Takes Time,” Mindful Magazine (January 19, 2018), available at https://www.mindful.org/loving-kindness-takes-time-sharon-salzberg/; Magee, at 37-39; Huang, at 118-119.

13. See Model Rules of Professional Conduct 1.4 and 2.1 (ABA Center for Professional Responsibility 2020), available at https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents/

14. Id.

15. Id.

16. As a personal testimonial, in several circumstances, I have developed friendships with opposing counsel. We have even ended up referring business to one another and referring one another for professional awards, among other things. See, e.g., fn. 2.

17. This neural connection between the brain and other organs is called vagal tone, for the vagus nerve, which is the largest cranial nerve and is involved in the connection of the brain and other organs, such as the heart, among other things.

18. See “Loving Kindness Meditation with Sharon Salzberg,” available at https://www.mindful.org/loving-kindness-meditation-with-sharon-salzberg/ (citing neuroscientists and neurological studies, including the work of neuroscientist Tania Singer of the Max Planck Institute for Human Cognitive and Brain Sciences and neurosurgeon James Doty,

MD, professor at Stanford University, in the article’s “Getting to Compassion” section); see also Terry DeMeo, “How To Deal with Difficult People,” May 29, 2011, available at https://www.inner180.com/2011/05/ (describing the risk of absorbing the pain of others when using empathy).

19. See Salzberg.

20. See “Loving Kindness Meditation with Sharon Salzberg,” available at https://www.mindful.org/loving-kindness-meditation-with-sharon-salzberg/; see also Salzberg; Vinny Ferraro, “Plant Kindness,” Mindful Magazine 12 (June 2022).

21. See Salzberg.

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