Blog | March 16, 2017

New and Deeper Meaning to “Using Your Brain”

What is “neuro awareness” and how can it help you resolve your separation and divorce issues? 

The Chair of Collaborative Practice Toronto, Nathalie Boutet, was interviewed extensively about this in the February 2017 issue of Law Pro Magazine.

The article provides a helpful overview of the current theory of evolutionary psychology, which divides our decision making into two basic systems, labeled in the article as System 1 and 2. System 1 is governed by our “reptile brain” and relies on primal and instinctual responses that “happen sub-rationally.” System 2 is based in our conscious thought, which developed later in our neocortex. Neuroscience suggests that, rather than making decisions, the neocortex acts to override – or rationalize – the reptile brain responses.

System 1 is particularly sensitive to stress. Given that separation and divorce are considered one of the most stressful life events, this is particularly important to be aware of, both for the separating couple and for the professionals assisting them. When we feel threatened, we act from a place of self-protection, commonly known as “fight or flight”. This might be useful when faced with a hungry lion, but less so when there’s a need to evaluate sophisticated financial information or parenting arrangements.

There are several strategies that can be used to help access System 2 decision-making skills to minimize stress and maximize the potential for good decision-making during negotiations.  I will highlight three and illustrate how they are integrated in the Collaborative Process.

Think slowly. Feeling pressured or bullied, or having to make too many decisions too quickly can lead to a reversion to System 1 thinking. In the Collaborative Process, information is shared and decision making done in a series of meetings. An agenda for each meeting is normally shared in advance and, without the pressure of court imposed deadlines, time is easily made for reflection and discussion. If a participant is feeling overwhelmed or anxious, it is easy to step out of the group meeting to see if that can be addressed. There is often a family professional involved in the process with training and skills to assist the person with addressing the emotional response. Maybe only a few minutes are needed, maybe something said in the meeting needs to be addressed, or maybe we need to end the meeting for the day. Multiple short meetings tend to be better for “slow thinking” and avoiding the chances of “settler’s remorse”.

Consult with others. The article notes that “research has shown that group decisions are less prone to bias and other distortions than are individual decisions”. The Collaborative Process works on a team model. Depending on the issues presenting for the couple, in addition to the Collaborative lawyers, the team may include a financial professional and a family professional, both of whom have a neutral role. They offer insight from their expertise, and reminders of the goals the parties initially identified in the event the settlement discussions stray from those goals.  The actual decisions ultimately lie with the couple, but those decisions are informed by valuable professional insights that are provided from the various team members. While there can be a temptation to just “get it done”, the team is there to help ensure the final settlement will work out in the years to come rather than just provide immediate relief from the current stress.   

Nourish your brain. We need sufficient calories and fluids to ensure optimal brain function. This may seem obvious, but is often overlooked in meetings with lawyers or mediators. Collaborative Practice meetings always have snacks and drinks on the table – it’s actually part of the practice protocol. The snacks, combined with the short meeting model, help ensure the participants have the energy needed for productive thinking. Collaborative Practice also means working with a team of professionals who are alert to signs of “decision fatigue”, which studies show can significantly decrease the quality of decision-making.  

Settlement decisions made in the context of separation and divorce are extremely important. They frequently lay the foundation for each person’s financial future and role with their children. The negotiations need to be done in ways that assist people to make good decisions that will serve them well over time.

By Jacqueline Peeters

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