Mindful Awareness and Burden Shifting

In the law, we are keen on legal doctrines that involve burden shifting.  Here is a simple and familiar example:  A plaintiff has the burden of making a prima facie case and then the burden shifts to the defendant to rebut the prima facie showing.

So often in relationships, personal and professional, things do not go as planned and we find ourselves feeling offended.  Instinctively, we erect our own version of the burden shifting rule.  We make the prima facie showing of why we are right and they are wrong and the burden shifts to them to explain or, better yet, concede defeat and then pay us damages–-be it an apology, a promise never to do it again, conceding a point, or whatever remedy we think is appropriate.

The practical challenge to this approach is that it is often not made explicit. That is, the rule is one we implicitly embrace but rarely communicate to the other yet expect them to comply with.  Another challenge is that often the “other” interprets the same event as if they are the plaintiff.  They erect their own rules and expect us to comply.Mindfulness offers a simple insight that obviates the need for the burden shifting rule, and leads to relief.  The burden does not shift.  It rests and remains on us.

A defensive response to this insight is to reject it and comment that it hints of the “abused persons” syndrome where the abused feels the harm inflicted on them is their fault.   The simple reason why this application doesn’t work is that
it has nothing to do with fault.

It has everything to do with realizing the true nature of experience and coming to deeply understand the nature of the mind.  Every affront you feel is an experience of your own making.  Yes, an event took place and it may well be one where someone else acted inappropriately and corrective action is to be pursued.  But the unpleasant feeling, that often translates into “outrage,” “resentment,” “anger,” “frustration,” or some other agitated state, is an internal experience.  It has no reality beyond the moment it arises as neurons in your brain fire and crackle, and then sputter, and then die down.  Yet, we can grab hold of that experience and wield a grand story around it.  This is where the burden shifting kicks in, the rules arise, and everyone sees things differently.

Mindfulness offers this simple instruction.  The next time the neurons fire and crackle and you feel agitated by the actions of another, pause and take a few moments to observe what is arising in your mind and body.  Breathe for a few moments as you pay attention to the thoughts arising, the emotions surging, and the sensations flowing through your body.Just notice.  You don’t need to figure anything out.  You don’t need to make you case, or defend your case, or expect someone else to.  By paying attention, you insert a buffer between the momentary experience and your conditioned reactivity.  That conditioned reactivity in this case is the "case law" you are relying on to make your case, win your argument, and receive a favorable judgment.  Because the momentary experience is just that—momentary—it passes.  If you succeed in allowing it to pass, you are left with the important visceral reminder that there may be something to address, but you are no longer caught up in the whirlwind of affect.

You can see more clearly, your brain returns to a more integrated state from which better decision-making can take place, and you are more likely to obtain a just outcome.But the burden is always on you . . . . to bring mindful awareness to the moment.
(originally Published July 3, 2010)
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