Jonathan Cohen (Florida) has published “Open-Minded Listening” in the Charlotte Law Review. Jonathan’s article explores what it means to listen with an open mind and how we (as lawyers, mediators, or judges) might cultivate open-minded listening in our practices. Abstract here.

Read on for two micro-analyses or “quick takes” on Jonathan’s article, in which two professors choose a line from the article and briefly explain why they chose it. Note that these takes are not supposed to provide in-depth analysis of the entire article. Rather, they should (1) provide a quick look at scholarship trending in ADR; (2) inspire people to check out the article; and (3) encourage conversation and thought. Let me know if you’d like to be a micro-reviewer or have your article micro-reviewed!

Quick Take #1: Rishi Batra, Texas Tech

“… sometimes listening can be conceptualized primarily as an external activity that the listener “does to” the speaker, while at other times listening can be conceptualized primarily as an internal activity that takes place within the listener’s mind. Legal scholarship, for example, commonly frames listening primarily as an external process. … In contrast, this article focuses upon the internal side of listening, more specifically, what takes place in the listener’s mind. Will the listener think seriously about the speaker’s words? Is the listener willing to change what he thinks or feels based upon what the speaker says? By open-minded listening, I mean the willingness to allow one’s heart and mind to be changed by what another says.” (145-146)

Like many of the readers of this blog, I take time in my Negotiation class to teach active listening skills, which I believe are important for lawyers to learn and can be improved through practice. I emphasize the benefits to a speaker of having been shown that they have been heard and that their concerns are understood. I talk about the potential for dispute resolution that this type of listening brings, particularly since one cannot address the needs, interests, or concerns of the other party without understanding them. I also emphasize how, in the context of mediation, parties often need to feel heard before they can allow themselves to reach resolution of the conflict. To teach these skills, I discuss active listening techniques such as acknowledgement, inquiry, and paraphrasing that help accomplish the goals of active listening, as well as more specific measures such as body language or mirroring that can help display such active listening.

 

However, I also emphasize that using active listening techniques can come across as disingenuous if you are not truly interested in hearing the other side. It is my belief that many speakers can tell when you are trying to fake listening, and they resent it. I use the phrase “negotiate yourself in to a place of listening”. This is a way of reminding listeners that despite what their internal voice might tell them to do (tune out a boring speaker, respond forcefully to one they disagree with, etc.), the listeners need to convince themselves they want to listen to this person before they can engage in active listening. Of course, one of the barriers to listening is the worry that if we truly listen to someone, and understand where they are coming from, we might end up agreeing with them. I have dealt with this difficulty by reminding my students (and myself) that one can listen, and even understand, without agreement, and that active listening can often be a way of getting the speaker in to a mindset of listening to you as well. In this way, I believe am still conceptualizing the process of listening as something one “does to” the speaker.

I think that this excerpt from the article shows that true open-minded listening is a challenge to go beyond the regular active listening that we often discuss. True open-minded listening actually requires “willingness to allow one’s heart and mind to be changed.” This strikes me as a much deeper form of listening than even active listening that is open to understanding. Of course, no active listener should close themselves off from the possibility of changing ones thoughts or feelings based on what they hear. However, approaching listening with the idea that one’s “heart and mind” will be vulnerable to change is a true test of our willingness to listen. This type of listening can already be difficult with those with whom we are closest. To begin a meeting with a frustrating opposing counsel (who has filed yet another motion to compel discovery against us, the jerk) with an attitude of open heart and mind may be beyond the abilities of all but the most enlightened.

Yet, the author reminds us that we can all strive for better. While we may not ever be able to truly listen with an open mind to the boss who is chewing us out or the colleague who has stabbed us in the back, we can at least try to practice open-minded listening with our friends, our spouses, our students, or our clients. Just as with active listening, open-minded listening strikes me as a skill that can be learned through practice. Perhaps with more attention to how we are listening, we can each “negotiate ourselves” to a place of not just active listening, but open-minded listening as well.

Quick Take #2: Jen Reynolds, University of Oregon

“To listen with an open mind is to see one’s understanding as a work in progress, as something that may potentially be improved.” (147)

After I read Jonathan’s article, I went home and binge-watched the new FX miniseries, The People v. O.J. Simpson: American Crime Story. At the time, I did not think these two activities were related. But as I watched, I couldn’t help reflecting on Jonathan’s article and the importance of listening with an open mind and a willingness to reconsider one’s own understanding.

Consider, for example, a scene in which prosecutors Marcia Clark and Christopher Darden are talking about the case, just days before jury selection begins:

    CLARK:   Here’s what I see as O.J.’s biggest problem.

    DARDEN:   That he did it?

    CLARK:   [laughs] OK, here’s what I see as O.J.’s second biggest problem. That pile-up of egos called the Dream Team. Alpha dogs in a cage match, they are gonna tear each other up and implode.

    DARDEN:   Well, that may be true for all the white guys, but I wouldn’t be so quick to judge Johnnie.

    CLARK:   Oh, come on. He’s an act! Those flashy clothes, preachy speeches …

 

Clark cannot believe that Johnnie Cochran will be convincing to the jury, even though Darden tries explain that Cochran is a pillar of the African-American community. She can only see him as one of the publicity-seeking showboaters on an “alpha dog” legal team. “What am I missing?” Clark asks. “He’s real,” Darden replies simply.

But to Clark, Cochran doesn’t seem real at all. She has hard physical evidence of the crime—that’s what is real to her—and therefore arguments or conclusions to the contrary make no sense.

Other examples abound. In another conversation, Clark waves Darden off when he tells her that many black people don’t think OJ did it. “That’s not possible,” she states. Similarly, when the jury consultant tells Clark that she scored a four and Cochran scored an eight, she is hurt but not inspired to reconsider her strategy or approach. Then, when the jury consultant tells her that she is not connecting with African-American women, Clark is absolutely incredulous. Over her career as a prosecutor, after all, Clark worked with many African-American women who were victims of domestic violence. In these cases, Clark recalls, she felt true connection and rapport. So how could it be possible that the African-American women in the jury consultant’s focus group hate her? She concludes that the jury consultant doesn’t know what he’s doing and fires him.

We all know how the O.J. criminal case turned out, so hindsight may be making these moments seem especially meaningful. But it is worth thinking about whether the case might have gone differently had Clark been able to adjust her understanding of the case based on the information she was receiving from others.

This is where open-minded listening comes in. Jonathan points out that the literature on effective listening often focuses on how it makes the speaker feel (heard, acknowledged, etc.) and not so much on what the listener learns. Of course, active listening certainly does help the listener learn more about the speaker’s perspective, and this is invaluable information. But there is less of a focus in traditional literature/practice, Jonathan argues, on how listening might change what the listener believes.

Open-minded listening, then, encompasses all the practices of active listening (paraphrase, acknowledge, inquire) along with the willingness to rethink or adjust one’s own understanding based on what the speaker says. Jonathan writes that the stages of open-minded listening include (1) hearing their words; (2) trying to articulate what they’ve said (he says this is an optional step); (3) asking yourself what you can learn; and (4) working to arrive at a deeper understanding. This approach is a step beyond active listening to demonstrate empathy and understand where they are coming from. Open-minded listening recognizes that what the listener believes may change as a result of listening.

Taking this approach in law and conflict resolution (and in human relationships generally) would work a radical change in how we appreciate the idea of “many stories being true” or the legitimacy of multiple perspectives. It’s not so much that everyone’s atomistic and hermetically sealed version of the truth stands alongside other versions, ours included. It’s that versions of truth themselves can interact and produce more truth, perhaps truth that is more true.

And I must mention, because the Oregon ADR Center has focused on implicit bias all year: in the context of implicit bias and debiasing, open-minded listening seems particularly useful. If we can listen/learn and then make internal adjustments based on what we have heard, we will be more effective at noticing and interrupting biased responses.

Jennifer Reynolds is an Assistant Professor at the University of Oregon Law and the Faculty Director of the ADR Center. Teaching civil procedure, conflicts of law, negotiation, and mediation, her research interests include dispute systems design, problem-solving in multiparty scenarios, judicial attitudes toward ADR, and cultural influences and implications of alternative processes. She is also a contributor to ADR Prof Blog.