Continued from Part 1.

At this point, it seems essential to discuss the importance of empirical evidence in the legal system.

"Empirical evidence(link is external) is evidence that one can see, hear, touch, taste, or smell; it is evidence that is susceptible to one's senses. Empirical evidence is important because it is evidence that others besides yourself can experience, and it is repeatable, so empirical evidence can be checked by yourself and others after knowledge claims are made by an individual. Empirical evidence is the only type of evidence that possesses these attributes and is therefore the only type used by scientists and critical thinkers to make vital decisions and reach sound conclusions." 

We can contrast empirical evidence with other types of evidence to understand its value. Hearsay evidence is what someone says they heard another say; it is not reliable because you cannot check its source. Better is testimonial evidence, which, unlike hearsay evidence, is allowed in courts of law. But even testimonial evidence is notoriously unreliable, as numerous studies have shown. Courts also allow circumstantial evidence (e.g., means, motive, and opportunity), but this is obviously not reliable. Revelatory evidence or revelation is what someone says was revealed to them by some deity or supernaturalpower; it is not reliable because it cannot be checked by others and is not repeatable. Spectral evidence is evidence supposedly manifested by ghosts, spirits, and other paranormal or supernatural entities; spectral evidence was once used, for example, to convict and hang a number of innocent women on charges of witchcraft in Salem, Massachusetts, in the seventeenth century, before the colonial governor banned the use of such evidence, and the witchcraft trials ended. Emotional evidence is evidence derived from one's subjective feelings; such evidence is often repeatable, but only for one person, so it is unreliable."

According to the National Center for Biotechnology Information, "Empirical research(link is external) does not support the common assertion that statistical evidence is overvalued. To the contrary, several studies with mock jurors suggest that decision makers generally make smaller adjustments in their judgments in response to probability evidence than the statistical evidence warrants."

In any event, I noticed similar reactions to empirical evidence from a study on the effects of spanking children(link is external) that looked at “five decades of research involving over 160,000 children.”

When this information was shared online(link is external), I saw people who admitted to having been spanked as children, completely disregarded the legitimacy of the research.  They claimed that if ‘as many as 80 percent of parents around the world spank their children’, then ‘80 percent of parents around the world’ disagree that spanking is ‘associated with detrimental child outcomes.’  They also pointed out that the law disagrees with these findings as well.

I could be mistaken, but there was a time in which everyone believed the Earth was flat.  Guess what?  Everyone was wrong!  

In other words, even if ‘as many as 80 percent of parents around the world’ disagree that spanking is ‘associated with detrimental child outcomes’ doesn't mean they are right.  Is the difference between right and wrong and truth and fiction based upon majority rule?  As I've said many times before, not all beliefs are fact based, regardless of how sincerely held such beliefs may be.

If current laws disagree that spanking is ‘associated with detrimental child outcomes’, does that mean the laws are correct?  We're not talking about natural laws, such as gravity, here.  Man-made laws can and do change, sometimes rather frequently. The laws in place at any given time may be the law, but they don't necessarily make sense and may even be counter-productive. Don't assume that just because something is ‘the law, that it is somehow divine.  In fact, they have annual programs in each and every field of law, wherein lawyers are educated about the changes in the laws in their field of practice that occurred over the preceding year.

It took my doctors a long time to diagnose my Crohn's Disease in that "diagnosis is often challenging(link is external), because many signs and symptoms are nonspecific." Nonspecific means not exact.

The following is an excerpt about medical diagnosis:

"The method of differential diagnosis(link is external) is based on finding as many candidate diseases or conditions as possible that can possibly cause the signs or symptoms, followed by a process of elimination or at least of rendering the entries more or less probable by further medical tests and other processing until, aiming to reach the point where only one candidate disease or condition remains as probable. The final result may also remain a list of possible conditions, ranked in order of probability or severity.

The resultant diagnostic opinion by this method can be regarded more or less as a diagnosis of exclusion. Even if it doesn't result in a single probable disease or condition, it can at least rule out any imminently life-threatening conditions.

Unless the provider is certain of the condition present, further medical tests, such as medical imaging, are performed or scheduled in part to confirm or disprove the diagnosis but also to document the patient's status and keep the patient's medical history up to date.

If unexpected findings are made during this process, the initial hypothesis may be ruled out and the provider must then consider other hypotheses."

Discounting the importance of pattern recognition and statistical probabilities because of the lack of certainty is incredibly frightening, dangerous, and harmful. I'm afraid that the need for certainty in a world in which nobody and nothing is perfect is a tad bit problematic, to say the very least.

Social science researcher Brené Brown(link is external) said the following with regard to binary thinking:

[W]hen we lead, teach, or preach from a gospel of Viking or Victim(link is external), win or lose, we crush faith, innovation, creativity, and adaptability to change…. When we teach or model to our children that vulnerability is dangerous and should be pushed away, we lead them directly into danger and disconnection.

The Viking or Victim armor doesn't just perpetuate behaviors such as dominance, control, and power over folks who see themselves as Vikings, it can also perpetuate a sense of ongoing victimhood for people who constantly struggle with the idea that they're being targeted or unfairly treated. With this lens, there are only two possible positions that people can occupy - power over or powerless…. Reducing our life options to such limited and extreme roles leaves very little hope for transformation and meaningful change. I think that's why there's often a sense of desperation and feeling 'boxed in' around this perspective....

The source of their Viking-or-Victim worldview was not completely clear, but most attributed it to the values they had been taught growing up, the experience of surviving hardships, or their professional training....

One issue that made these interviews some of the most difficult was the honesty with which people spoke about the struggles in their personal lives - dealing with high-risk behaviors, divorces, disconnection, lonelinessaddictionanger, exhaustion. But rather than seeing these behaviors and negative outcomes as consequences of their Viking-or-Victim worldview, they perceived them as evidence of the harsh win-or-lose nature of life.

Not surprisingly, over time, marginalized groups come to realize that the embodiment of their oppression is the result of binary norms(link is external).

Furthermore, as previously stated, binary thinking "leads to quick, irrational decisions and action."

When immersed in emotional turmoil, it’s easy to forget that we are each unique individuals who may interpret things differently than you. Therefore, it’s crucial to put yourself in other people's shoes and view things from their perspective— recognize their needs. To do so requires empathy.

What is empathy and why is it important?

According to Brené Brown, empathy is a skill set and that perspective taking is at its core. Perspective taking is normally taught or modeled by parents, which makes your doing so that much more important. Dr. Brown contends that we can’t take off the lens from which we see the world. We all view it differently, based on our information, insight, and experiences.

Moreover, Dr. Brown suggests:

"Perspective taking is listening to the truth as other people experience it and acknowledging it as the truth. What you see is as true, real and honest as what I see, so let me be quiet for a minute, listen and learn about what you see. Let me get curious about what you see. Allow me to ask questions about what you see.

Empathy is incompatible with shame and judgment. Staying out of judgment requires understanding. We tend to judge those areas where we’re the most vulnerable to feeling shame ourselves.

We don’t tend to judge others in areas where our sense of self-worth is stable and secure. In order to stay out of judgment, we must pay attention to our own triggers and issues."

In so doing, the dynamic can become more balanced and inclusive.

Mark B. Baer, Esq. is a mediator, collaborative law practitioner, conflict resolution consultant, co-author of Putting Kids First in Divorce, and co-founder of Family Dynamics Assistance Center. He also regularly writes for the Huffington Post and Psychology Today.