Teaching Law Students How to Feel: Using Negotiations Training to Increase Emotional Intelligence Open Access

In the fall of 1928, Mary Parker Follett, a pioneer in the fields of human relations and management, delivered an address at Boston University entitled, “The Teacher–Student Relation,” in which she suggested that “true education” lives in the “quickening of imagination, the widening of sympathy, the training of emotion” (Follett 1970: 146). Since I started teaching negotiations to law students two‐and‐a‐half years ago, one of my central pedagogical questions has been, “To what extent is this material really teachable?” Is it possible to teach someone how to incorporate material at the “motor level” (Davis 1991: 17) so that it can be exhibited through behaviors (as borne out in actual negotiations) rather than through analytical thinking alone (as borne out in written papers and examinations) (Menkel‐Meadow 2003)?

Most law school courses focus narrowly on developing cognitive skills: the mission is to teach students how to “think like a lawyer” (Hunsaker 1980: 420). This article suggests that negotiations courses — taught through traditional lectures and readings and also through role plays, simulations, and exercises — allow students the opportunity not only to analyze, but also to experience and feel (and perhaps even fuse into their own personalities and constitutions) the principles, theories, and concepts of negotiations, thereby training the students in understanding emotion and increasing their emotional intelligence. The article concludes with a recommendation, indeed a gentle plea, for law schools throughout the country to make training in emotions, whether as part of a negotiations course or as a stand‐alone course, a curriculum staple. While my own experience is limited to teaching in a law school, anecdotal evidence gleaned from students and instructors at business, public policy, and other professional schools suggests that this general plea might well be made to all professional degree‐granting programs.

According to The American Heritage Dictionary, emotion is “A mental state that arises spontaneously rather than through conscious effort and is often accompanied by physiological changes; a feeling: the emotions of joy, sorrow, hate, and love.”¹ Academics have quibbled over the definition of emotion for decades. For example, while Richard Lazarus, Alan Kanner, and Susan Folkman suggest that emotions are complex, organized states consisting of cognitive appraisals, action impulses, and patterned physical reactions (Lazarus, Kanner, and Folkman 1980), Silvan Tomkins would argue that they are limited to sets of muscular and glandular responses located in the face and also widely distributed throughout the body (Tomkins 1980). My own definition conforms closely to that presented by Daniel Goleman in Emotional Intelligence: Why It Can Matter More Than IQ:

Goleman suggests the “primary” emotions — or the “blue, red, and yellow of feeling from which all blends come”— include anger, sadness, fear, enjoyment, love, surprise, disgust, and shame (Goleman 1995: 289).

The term “emotional intelligence,” too, has been debated among academics and human relations practitioners in recent years. One team of authors defines it as “the ability to sense, understand, and effectively apply the power and acumen of emotions as a source of human energy, information, connection, and influence” (Cooper and Sawaf 1998: xiii). While the study of emotional intelligence is a burgeoning area of scholarly discourse, Peter Salovey and John Mayer have developed a definition of emotional intelligence that is “recognized as the standard by scholars working in the field of emotions” (Jordan, Ashkanasy, and Hartel 2003: 196).

According to Salovey and Mayer, emotional intelligence can be divided into four “branches:” (1) emotional perception and expression (or the ability to correctly identify how people are feeling); (2) emotional facilitation of thought (or the ability to create emotions and to integrate one's feelings into the way one thinks); (3) emotional understanding (or the ability to understand the causes of emotions); and (4) emotional management (or the ability to discover and implement effective strategies utilizing one's emotions to assist in goal achievement, rather than being used by one's emotions) (Mayer and Salovey 1997).

This first branch begins with the capacity to perceive and express feelings. Developing emotional intelligence is impossible without developing competencies from this branch (Saarni 1999). Emotional perception involves registering, deciphering, and attending to emotional messages as they are expressed in facial expressions and voice tone. An example of this capacity would be to see and understand the fleeting expression of fear in the face of another person. This capacity provides one with the ability to: (1) identify emotions in oneself; (2) identify emotions in other people; (3) express emotions accurately; and (4) discriminate between real and phony emotional expressions (Caruso, Mayer, and Salovey 2002).

The second branch concerns emotional facilitation of cognitive activities. While cognitive activities can be interrupted by emotion, such as fear or anxiety, emotions can also “prioritize” the cognitive system to address what is important and even to focus on what it does best in a given mood (Schwarz 1990). The emotional facilitation of thought focuses on how emotion affects the cognitive system and can thereby lead to more effective reasoning, decision making, problem solving, and creative expression. Emotional facilitation of thought provides one with the ability to: (1) use emotions to redirect attention to important events; (2) generate emotions that facilitate judgment, memory, and decision making; (3) use mood swings as a way to consider and appreciate multiple points of view; and (4) use different emotions to encourage creativity and different approaches to problem solving (Caruso, Mayer, and Salovey 2002).

The third branch involves understanding emotion. The most fundamental competency at this level is the ability to label emotions (e.g., “annoyance,”“irritation,”“rage”) and then to deduce the relationship among them — how they blend together and how they transition from one stage to another and progress over time. For example, a person who understands that annoyance and irritation can lead to rage if the offending stimulus is not eliminated will be able to understand important aspects of interpersonal relationships (Mayer and Salovey 1997). Emotional understanding, then, provides one with the ability to: (1) understand relationships among various emotions; (2) perceive the causes and consequences of emotions; (3) understand complex feelings and emotional blends; and (4) understand transitions among emotions (Caruso, Mayer, and Salovey 2002).

The fourth branch, emotional management, is sometimes referred to as emotional regulation. While some believe that mastering this branch of emotional intelligence will allow them to control their emotions or even eliminate the more troublesome emotions (like envy or jealousy), Salovey and Mayer warn that “attempts to minimize or eliminate emotion completely may stifle emotional intelligence” (Salovey, Mayer, and Caruso 2002: 162). Similarly, Salovey and Mayer suggest that the regulation of emotion in other people is less likely to involve suppressing their emotions and more likely to involve “the harnessing of them, as when a persuasive speaker is said to ‘move’ his or her audience” (Salovey, Mayer, and Caruso 2002: 162). Emotional management provides the ability to: (1) be open to one's feelings, both pleasant and unpleasant; (2) stay aware of, monitor, and reflect upon one's emotions; (3) engage, prolong, or detach from an emotional state; (4) manage emotions in one's self; and (5) manage emotions in others. While the skill of reflecting upon and managing one's emotions can be difficult to develop and hone, one researcher suggests that disclosing emotional experiences in writing can assist in the endeavor and also lead to improved physical and mental health (Pennebaker 1997).

Mary Parker Follett once wrote that “Concepts can never be presented to me merely, they must be knitted into the structure of my being, and this can be done only through my own activity” (Davis 1991: 17). A major tenet of “experiential learning” is that some people learn more effectively by doing, by participating, by being actively involved in the learning process (Menkel‐Meadow 1994). Simulated negotiation exercises provide active involvement, or experience,² whereby the concepts and principles of emotional intelligence can be transformed from theory to practice.

Each semester, a favorite simulated negotiation exercise among my negotiation seminar students is entitled “Charlene Walker.”³ It is a multiparty negotiation in which the class is divided into several groups of four students, with each student playing one of the following roles: Charlene Walker, a low‐income mother of three children; Charlene's attorney, who has just started a private law practice after spending three years working for the city's legal aid foundation; a social worker for the city's department of social services; and an assistant city attorney called upon to counsel the city social worker.

In the interest of brevity, a simplified version of the facts in the case follows: Charlene retains an attorney because one of her children is injured and Charlene is accused of leaving her children neglected and uncared for in the evenings. The fact is that the child accidentally injured herself while waking from a bad dream. The city social worker strongly suspects that Charlene works in the evenings as a prostitute. In fact, Charlene works as an exotic dancer in a nightclub, but she does not want anyone to know her occupation.

One of the main issues for Charlene during the negotiation is determining how much she trusts, and can confide in, her lawyer. Her lawyer is provided with minimal facts and therefore must quickly develop a strong and trusting bond with Charlene so that Charlene will voluntarily divulge potentially embarrassing information during their one‐on‐one counseling session. (This counseling session takes place before the more contentious and adversarial multiparty negotiation occurs with all four parties present.)

One might be skeptical that law students can “get into” playing the role of characters whose life experiences are, in most cases, starkly different from their own, such as that of a low‐income mother or a social worker for the city. However, it has been my observation that students perform this task quite well; indeed, they usually enter the negotiation with noticeable excitement. Role plays are generally effective in providing students with a license to experiment with behaviors they might not feel comfortable displaying “in their own skin” or when playing themselves. Moreover, there is something about the Charlene Walker exercise in particular that enables students to engage with each other in a most realistic manner. Perhaps it is the simplicity of the facts, or the raw emotions that tend to come quickly to the fore, which seem to almost take the student “actors” by surprise. This negotiation, then, almost invariably intensifies quickly, with body language, emotion, and behaviors that frequently transition from play acting to “real life,” including anguish‐filled facial expressions, vocal expressions of anger and exasperation, and even outright yelling.

The debriefing of the exercise includes discussions of emotional intelligence. In many instances, Charlene does not feel comfortable enough with her attorney to divulge the fact that she is an exotic dancer. This can be quite uncomfortable later in the negotiation if Charlene is accused of being a prostitute by the city social worker and his or her counsel (i.e., the “opposing side” in the negotiation) — an accusation that can appear “out of the blue” for Charlene's attorney. In fact, there are several instances where information may be divulged, or accusations may be hurled, by the other side that come as a complete surprise to Charlene's lawyer — but, again, only if Charlene does not feel comfortable enough to divulge the information in her initial, one‐on‐one meeting with her attorney, before all four parties meet to negotiate as a group.

Much of the case debriefing, then, focuses on how an attorney might effectively connect with his or her client: how to convince the client that the attorney will act as his or her zealous advocate, how to convince the client that the attorney can be trusted with even the most sensitive information. In short, this is a prime vehicle for training law students in emotion and the concepts and principles of emotional intelligence.

Each semester there is at least one student playing the role of Charlene's attorney who asks, “But how do I build rapport? How do I make Charlene Walker feel comfortable enough to disclose all the important information before we negotiate with the social worker and the city attorney?” Of course, this is the crux of the exercise: to teach students the nuts and bolts of connecting with another person during an interview, a conversation, or a negotiation.

One way to offer the prescriptive advice is to show a PowerPoint slide listing various suggestions. However, from a pedagogical standpoint, it is far more effective to ask the students who have just played the roles of Charlene and Charlene's attorney (specifically those Charlenes whose counsel made them feel safe and comfortable in divulging their entire situation, without holding back embarrassing information) to discuss which specific behaviors and statements led to the creation of a safe, rapport‐filled environment where all information could be shared. The list generated by the students usually includes the following:

• I made sure Charlene understood the process of the negotiation: how it would start, what information I would divulge and when, etc.

• I asked Charlene exactly how much she wanted to participate in the negotiation, if at all.

• Charlene and I came up with a secret signal we could give each other if we wanted to take a break from the negotiation in order to consult.

• I asked open questions of Charlene, such as, “It sounds like this case has been a nightmare for you so far. Could you please tell me about it?”

• I assured Charlene that I was in the negotiation to be her advocate and that I was “on her side.”

• I assured Charlene that I have been through many similar cases, with success.

• I assured Charlene that she could tell me anything and that it would be kept strictly confidential.⁴

• I told Charlene that she knows what is best for her children and that I would do whatever I could to achieve those results.

• I sat fairly close to Charlene and sometimes would lean a little bit toward her to indicate my presence and my concern; I spoke in moderate tones; I tried to have good (but not overbearing) eye contact; and I nodded (and asked follow‐up questions) when Charlene spoke to indicate I was listening closely.

• I sometimes touched Charlene lightly on the shoulder in a reassuring manner.

• I said to Charlene several times, “Is there anything else I should know?”“Are you sure you are telling me everything?” and “It's important that I know everything before we go into the negotiation.”

• I asked Charlene for her suggestions and input on the best way to proceed in the negotiation and gave critical, but nonetheless respectful, reactions when I felt her ideas might be ineffective in (or even detrimental to) the negotiation.

• Throughout our conversation, I asked Charlene if she had any questions at all, and I would answer all her questions calmly, clearly, and thoroughly.

• I tried to not make any assumptions about Charlene or her situation, or to indicate in any way that I was jumping to conclusions or arriving at any kind of judgment whatsoever.

The exercise also becomes a discussion of how a “win‐at‐all‐costs” mindset oftentimes pervades negotiations carried out in a legal context. For example, many students playing the role of the social worker report during the debriefing that they enter the negotiation thinking, “I want to win, I must win, and in this case winning means separating those children from Charlene Walker.” Students wonder aloud whether such a “gladiator” mindset, which “defines successful performance as fighting to win an argument, a conflict, or a case” (Sturm 1997: 121), can be so strong and pervasive in law and legal training that it can interfere with the parties’ ability to reach a negotiated settlement or agreement.⁵

As the instructor I raise the question, “Before you entered law school, before you were taught how to be a ‘gladiator,’ what is the overriding question you might ask upon entering this negotiation?” Most classes quickly arrive at an answer similar to, “What can we do to ensure the safety of the children?” Then I ask, “How much time did you, as a group, spend answering that question during this negotiation?” Most groups quickly arrive at an answer similar to, “Not much time at all, if any.”

Training in emotions would enable students to better recognize the “win‐at‐all‐costs” mindset and its attendant emotions (which might include disgust, contempt, and annoyance), to better perceive the consequences of moving forward in that frame of mind, and, finally, to more successfully transition to a mindset and emotions that encourage creativity, open‐mindedness, and joint gain problem solving.

It is at this critical point in the course, usually a quarter of the way into the semester, when I can begin to reframe for students what negotiation is, or what it can be. America's current culture of acrimonious debate, or what Deborah Tannen calls “the argument culture,” helps to frame negotiation as a battle or war (Tannen 1998). Not surprisingly, many students enroll in my negotiations seminar hoping to learn the tricks and tactics of becoming a “tough negotiator.”⁶ But if I can successfully frame negotiation as more of a conversation— the art of generating a positive mood (Freshman 2002) and trading information in order to achieve integrative solutions and maximize joint gains (Fisher, Ury, and Patton 1991) — then students quickly come to the conclusion that every conversation in which they participate is a potential negotiation. And so far no student has expressed a desire to learn how to become a tough conversationalist.

Follett argued that the “aim” of education is “not to teach subjects merely, but to develop personality, to build character, and to teach men and women to live fruitfully with other men and women” (Follett 1970: 141). Follett writes of her

Follett was arguing for a type of human relations training, directly calling for skills development in “how to live” with each other for “maximum yield.” More than a quarter century later, in 1955, Harvard Law School Dean Erwin Griswold called upon the bar and the legal academy to recognize the need for human relations training in law school (Griswold 1956). Griswold said that such training could help lawyers better understand their own emotional needs and that of their clients; he also noted that the average lawyer spent far more time interacting with people than reading and arguing appellate cases. Stated Griswold:

It took nearly ten years before the ideas espoused by Dean Griswold began to be introduced in a serious manner through legal studies. In 1964, Professor Harrop Freeman published one of the first course books devoted to the techniques and psychology of interviewing and counseling clients (Freeman 1964). Of course, the legal academy is rarely accused of implementing change too quickly, and a law review article written by Professor Alan Stone in 1971 stated that, in spite of Dean Griswold's strong support for human relations training, “law schools . . . have largely ignored the responsibility of teaching interviewing, counseling, negotiating, and other human relations skills; and Harrop Freeman's work has not generated a new Langdellian dynasty” (Stone 1971: 428).

The last three decades have been witness to a marked increase in the number and variety of law school courses offered in interviewing, counseling, mediation, and negotiation; and numerous case books have been written to assist teaching in these subject areas.⁷ Moreover, legal educators specializing in the field of alternative dispute resolution (or “appropriate” dispute resolution as many leaders in the field now call it)⁸ have worked to develop a curriculum that can, in the words of former Attorney General Janet Reno, “create a problem‐solving . . . and peacemaking capacity in all . . . lawyers” (Reno 1999: 5). Nevertheless, legal academics still argue that lawyers must learn to be more effective interpersonally (Menkel‐Meadow 2000). As Professor Chris Guthrie summarizes it, “Lawyers are analytically oriented, emotionally and interpersonally underdeveloped, and as adversarial as the legal system within which they operate” (Guthrie 2001: 162–163).

The current situation, then, requires the nation's law schools to: (1) supplement students’ analytic orientation; (2) soften students’ tendency toward being adversarial (Bok 1983);⁹ and (3) address student shortcomings in the areas of interpersonal skills and emotional intelligence.

One possible solution is the development of an “emotional skills training” program within law schools around the country. This could easily be taught as a module within a standard negotiations course, but it could also be taught as a completely separate, stand‐alone course. Researchers suggest that people can acquire, through training, both knowledge and skills in the area of emotional intelligence (Caruso, Mayer, and Salovey 2002). Academics and practitioners in the areas of organizational development, neuropsychology, psychiatry, and related areas of emotional and cognitive performance suggest that emotional intelligence can be learned and improved throughout one's life (Harvard Business Review 2004).¹⁰ Such training might include the following:

1. Training law students to be more sensitive to the subtle signs of emotions in others— in their faces, voices, and postures. Experts in emotion suggest that techniques are available to teach such skills, and students can become quite proficient in the skill in just a few hours of training (Ekman 2003).

2. Training law students in the internal sensation of emotion, so they become more aware when emotions are beginning. Emotions feel quite different from each other physically, and people could be educated about these bodily sensations, developing a greater self‐awareness.

3. Training law students how to determine why they feel the way they do, how to express those emotions, and how to use all this information in making more informed decisions (Caruso and Salovey 2004).

4. Training law students how to deal with emotional conflict. This would include both understanding the theory and process of conflict, as well as the practical skills and means that can be implemented to manage and productively harness strong emotions on all sides of the negotiation table (including one's own) (Goleman 2003; Stone, Patton, and Heen 1999).

Training in emotions will provide law students with a greater capacity to connect with their clients — to see, hear, and understand their clients completely and thoroughly, with focus and intention. This is necessary to form a relationship of trust, cooperation, and collaboration, which, in turn, is necessary to effectively (or even adequately) represent a client through litigation, mediation, facilitation, negotiation, or any other legal or quasi‐legal process (Clark 2002; Cobb 2001; Menkel‐Meadow 1994).

Moreover, training in emotions will enable law students to make this essential connection with their clients immediately upon meeting them, which empirical evidence shows can be a crucial time (and perhaps the only time) for attorneys to learn vital information about the matter at hand. Professor Gay Gellhorn videotaped and transcribed “first interviews” between law students and their clients, and between practicing attorneys and their clients, and concluded that:

In implementing law school training in emotions, the number of hours spent in class need not equal the number spent in more traditional courses such as property, contracts, civil procedure, or torts. There are other possible models. For example, one of the first law school courses in the nation to apply human relations training to law was taught by Professor Howard Sacks at Northwestern Law School during the 1957–58 school year. The course, entitled “Professional Relations,” was offered without credit and was taught (in four classes lasting two hours each) over the span of two weeks. Professor Sacks expressed the hope that other law teachers would join in his experiment, both in offering stand‐alone courses such as “Professional Relations” and in integrating human relations training into the regular curriculum (Sacks 1959).

To become a more effective lawyer, negotiator, or problem solver, one must learn how to connect with other people — how to build relationships of trust, respect, and collaboration. This article suggests that connections are more likely to be made, and meaningful and effective relationships are more likely to be built, if one can first gain a fundamental understanding, both theoretical and practical, of human emotion. As Erica Fox notes, “I sense a new moment emerging in the dispute resolution field when those of us committed to managing conflicts on the outside will increasingly understand that we must focus intently on the inside” (Fox 2004: 462). In order to negotiate and connect with people who are outside of ourselves, we must first gain a more thorough understanding of the emotional states inside ourselves. We must learn to harness the power and intelligence of emotion in ourselves and others. As Cicero wrote more than two thousand years ago:

In the realm of negotiations, Fisher, Ury, and Patton make a similar (albeit less sweeping and less dramatic) observation when they write, “In a negotiation, particularly in a bitter dispute, feelings may be more important than talk” (Fisher, Ury, and Patton 1991: 29). Professor Sara Cobb, in discussing nuances of “creating sacred space” during dispute resolution activity, refers to “the presence of a relational process” that can lead parties not merely to agreement but also to “the creation of something sacred, something whole, something holy”— or even to “the emergence of morality itself”— within the context of mediation, facilitation, or negotiation (Cobb 2001: 1017–1018). While Cobb suggests this process “defies our explanations as [dispute resolution] practitioners,” I would argue that demystifying the power and complexity of human emotion is an important way to begin to understand and explain these “relational processes” that can play such an integral role in resolving conflict and renewing hope (Cobb 2001: 1018).

Mary Parker Follett pointed out more than seventy‐five years ago that it is businesspeople and teachers who are “in a position to try out their ideas of human relations any day” and who are “coming to have the experimental mind” (Follett 1970: 137). One can hope that people with the power to advance curriculum changes in law schools — meaning professors, deans, trustees, and other people occupying teaching, administrative, and leadership posts at law schools throughout the country — will latch onto this spirit of creativity and implement programs, even experimental ones, to train students in emotion. Doing so might finally render moot a rhetorical question originally asked by Dean Griswold in April 1955, one that unfortunately continues to remain relevant and ring true to the present day: “Many lawyers never do seem to understand that they are dealing with people and not solely with the impersonal law. How far is law school education responsible for this lack?” (Griswold 1956: 203).