The Discourse Beneath: Emotional Epistemology in Legal Deliberation and Negotiation

Abstract:     
All lawyers negotiate, and all negotiators deliberate. This article addresses the pervasive but unrefined use of emotional insight by deliberating and negotiating lawyers, and suggests that legal education could improve lawyering by adopting a fuller model of legal thinking that takes account of this "epistemological emotionality."

In forming the beliefs that underlie choices made during deliberation and negotiation, people rely on insights informed by past and present emotional experience. Such epistemological emotionality fuels a pre-linguistic, quasi-inductive reasoning process that enables us to draw on stored information about emotional phenomena to hypothesize about motives, behavior, and potential consequences. As deliberation moves from the individual to the collective endeavor, negotiators draw on epistemological emotionality in an iterated process of evaluating and adjusting for the impacts of each round of exchange on each participant, to maintain an effective negotiating environment.

Epistemological emotionality thus fuels the processes of deliberation and negotiation that permeate legal practice, but lawyers are discouraged from refining (or even acknowledging) their use of emotional insight by a professional culture that disdains it. Disdain is inculcated by a tradition of legal education steeped in the Platonic dichotomy between cognition and emotion, in which cognition is the virtuous champion of objective truth and emotion is an amoral, primitive wilderness to be tamed by reason. However, lawyers are called upon to untangle the vexing, layered, and often emotionally-charged situations that others have finally relinquished to the care of professionals, and neglect (or abuse) of epistemological emotionality can compromise their performance.

Growing recognition in other academic and professional disciplines attests to the importance of emotionally-informed knowing in reasoned human discourse - but nowhere is reasoned human discourse more important than in the deliberative enterprise of law, which requires its agents to reflect carefully about the meaning of social interactions and institutions (and accords great significance to their ultimate decisions). The piece argues that a more purposeful synthesis of emotional and analytic data in deliberation and negotiation will improve the potency with which lawyers, judges, and lawmakers approach the problems they are called upon to solve.

Keywords: Negotiation, deliberation, deliberative, emotion, epistemology, reasoning, inductive, philosophy, intuition, cognitive bias, emotional intelligence, legal education

JEL Classifications: B30, C70, D70, D74, Z1

Accepted Paper Series