Blog

Last week I had the pleasure of seeing Jeanette Winterson speak on the subject of feminism and the #metoo movement. This became a broader discussion about the fact that we seem to be living in a more split and divided world than ever before with, as Winterson put it, opposing forces of light and darkness struggling against each other.

I share Winterson’s view. We are living in polarised times in which people have become increasingly vehement and unshakeable in their beliefs and furious with those who do not share them. This is understandable of course; the stakes are high with so many of these issues; think Donald Trump, Brexit, climate change. These issues all potentially have a massive impact on us and of course we feel passionately about them.

Sharpening your soundbites

There’s also no doubt that the way we communicate these days makes our differences appear even more stark. As an avid Tweeter myself, I’m often surprised by the hatred and vitriol expressed on Twitter, most recently with half of my Twitter feed laying into Sir Philip Green for his alleged bullying and harassment and use of NDAs and the other Lord Hain for what some believe was his misplaced use of parliamentary privilege in naming Green.

What’s dangerous about this state of affairs is that somewhere along the way the ability to debate and any room for nuance and the possibility of changing your mind seems to be disappearing.

I think that this was demonstrated by the reaction to those (female) public figures who attempted to enter the #Metoo debate by presenting some alternative views from the perspective of some men, only to be forced to withdraw in the face of furious responses.

Splitting up and splitting off

I think what we’re seeing is an age in which the psychological phenomenon of ‘splitting’ has come to the fore. This concept was introduced by psychotherapist Melanie Klein to describe how, when we are babies we ‘split’ or categorise things and people in the world into ‘good’ and ‘bad’ as a simpler way of seeing the world. We ‘project’ or split off our negative personality traits and put them onto the ‘other’. Klein called this way of thinking the paranoid schizoid position.

As a divorce lawyer and mediator myself, I’ve observed many clients over the years spending quite a lot of time in this position. It’s totally understandable of course – when we’re really stressed, we do have a tendency to get into all or nothing and black and white thinking. It then becomes very difficult to see where we have played a part in creating any problems and very hard to see the positive in anything the other person does.

The other position that Klein talked about was the depressive position; a state in which we are able to see the good and bad in both others and in ourselves; a more nuanced view. For example, if we think of Donald Trump as the ultimate ‘paranoid schizoid’ politician then perhaps Barack Obama is an example of the ‘depressive’ kind.

But is it even possible to go through a relationship breakdown without spending most of your time in the paranoid schizoid position? I’ve seen some clients go through it but come out of the other side, often with the help of therapeutic support to help them to identify when they’re getting into that way of thinking. These are the clients who tend to be able to negotiate or mediate, as they’re able to maintain some flexibility of thought and remain open to discussions with their ex, even though it can still be really tough.

Anger and its uses

But It’s not quite as simple as the paranoid schizoid position being the ‘bad’ and childish position. That would be like saying all anger is ‘bad’, which is of course not true. The anger inherent within this position can propel a person into action, which can be a good thing especially in a divorce where you need some ‘ooomph’ to get you through a process that can be frustrating and long-winded. It’s like that feeling when you’re really angry about something and the anger spurs you on to achieving a goal, even if that goal is just to (finally) clean the kitchen floor. The depressive position, on the other hand, can often be characterised by apathy, inability to make decisions and inactivity.

A bit of paranoid schizoid-inspired action is often needed for positive change to occur. The Suffragettes made real progress once they started to take action that caused widespread disruption rather than just debate. Similarly Nelson Mandela. The #Metoo movement also seems to be borne out of a realisation that the diplomatic route to achieving equality for women has achieved far far less than we would have hoped.

How do we use all of this?

What’s the upshot of all of this for those of us who work with conflict day to day? I think that we can use the current climate to spur us on to greater empathy for our clients. As a Remainer myself, when I feel a client of mine is being inflexible in their beliefs in a mediation for example I try to call to mind the feelings that arise in me when discussing Brexit with Leavers, not least the stubbornness and resistance to considering different sides to the story that I see arising in me. This helps me to appreciate the mindset my client may be in and to understand that I too can get into that sort of fixed position quite regularly.

My job as a mediator is to create the right conditions to gently encourage flexibility of thought, without shaming that client and I can do that so much better when I can hold in mind that I can be just as resistant to adjusting my world view.

Mentalisation

I try to encourage my clients to engage in ‘mentalisation’, which is the ability to understand the mental state of others and what underlies their thinking. We all need to be encouraged and helped to be curious about what others are thinking and to try to step into the internal worlds of those we disagree with. When we do that, we can identify misunderstandings and help people to work them through. In mediation, mentalisation can also include bringing the child/children into the minds of parents and encouraging them to think about what may be going on in their children’s minds.

Do we want to be ‘right’ or do we want to be happy?

Working with conflict, whether in a domestic context or on a broader scale, is so far from easy and it’s common to get demoralised in the face of strong resistance from clients. After all, we all like to cling to what we think is right.

For me, my goal is to practice what I preach in my own life so that I can help clients to do the same. If that means being willing to take on board alternative opinions on Brexit and the like, then so be it!

I had an extraordinary experience at a conference last week, witnessing a presentation that was moving, desperately sad and hopeful in equal measure.

The speakers were Jo Berry and Patrick Magee. Jo’s father, Sir Anthony Berry was a Conservative MP who was killed in the Brighton bombing in 1984. Jo’s fellow presenter was Patrick Magee, the IRA member who planted the bomb. They spoke to us on the 34th anniversary of the bombing.

That’s right – Patrick killed Jo’s father. Yet somehow, these two people have found a way to come together, giving hundreds of presentations all over the world and sharing their message, which is a simple one – that dialogue and mediation are the means to peace. Through the charity ‘Building Bridges for Peace’ they’ve travelled to places including Palestine, Lebanon and Rwanda trying want to help people ‘understand the roots of war, terrorism and violence’.

Their talk made me reflect on the power of talking and those skills that are often referred to as ‘soft’ such as listening, empathy and acknowledgment. When they first met some time after Patrick was released from prison as part of the Good Friday agreement, Jo and Patrick did not describe a situation in which everything was resolved and all was forgiven. What Patrick repeated, simply, was this: “she listened to me”. This listening seemed to have had an incredibly powerful effect on him. Their willingness to enter into conversation and to really hear each other has helped them to achieve something truly inspiring.

Working through difference

This was a powerful message for an audience made up of lawyers, mediators and others working with families going through conflict.

I’ve found in my work that, even when there still remain differences between a former couple (as there often are), they can still make progress in resolving conflict, provided they can listen to the other and show some degree of honesty, open-mindedness and willingness. A lot of the time the job of a mediator has to be about finding a way forward that both people can live with; not something either person is wildly enthused about, (as no one ‘wins’ in these situations) but something acceptable to each of them.

It takes a lot of hard work by the mediator to keep former couples focused on rebuilding the bridges of communication that have been so damaged by conflict. The alternative of course would be to help the couple to continue to build up walls between themselves (often through litigation), harming themselves and any children they may have in the process.

No dialogue = no chance

I believe that we all as humans have a propensity to build walls between ourselves and others without even realising it. I was reminded of this at the very same conference, bumping into someone who I hadn’t spoken to for a long time. A situation had arisen years ago involving me, this person and some others; a situation that I looked back on with confusion, remorse, a bit of annoyance and some pain. In the intervening years, a wall had grown in my mind between myself and this person, due to my own fear-based imaginings and the passage of time, rather than any actual wrongdoing.

Having had the opportunity to sit down at the conference and have a dialogue of our own, these fears dissipated (as they so often do, once we have the capacity to be honest with a person) and the conversation ended with both of us having a better understanding of what had taken place years previously. Our meeting ended with a hug, just as the presentation given by Jo and Patrick did.

I for one want to keep on trying to build bridges, even though it’s usually much tougher than building walls. It’s much easier not to talk and to blame the other from afar. Attempting to be conciliatory also presents particular difficulties for those in the legal profession, still working within a fault-based system and facing criticism from clients for being too ‘weak’ and ‘walked all over’ by their ex and their legal team if they take this sort of approach.

This is a difficult time for our country and for the world and there’s never been a more important time to focus on building bridges not walls. As Jo and Patrick’s presentation showed, this is not the easier, softer way; it is the tougher way. But for me and many others it is the only way.

If you’ve got something out of this article, please donate to Building Bridges for Peace who need financial support in order to continue their incredible work –  www.buildingbridgesforpeace.org. 

Mindfulness is the buzz-word of recent years with everyone desperately trying to remain ‘in the present moment’. But how does that fit with the ticking clocks on the computer screen that dominate many lawyers’ lives? They’re an ever-present reminder of how long you’ve been working on each job and of the passage of time. Usually sat alongside a graph of progress against the dreaded ‘billing target’; the two together are a constant reminder to strive to record ‘enough’ hours and bill the clients ‘enough’ money.

What effect do these reminders of time have on our mental health?

Quite a big one, I would suggest. Given that lawyers are notoriously goal-driven perfectionists anyway, I think that the effect is particularly potent as a constant marker of ‘success’ or ‘failure’.

There’s also that tricky tightrope for solicitors to walk of recording ‘enough’ hours to produce as much revenue as possible, whilst not taking ‘too long’ over a task so as to be criticised by boss and client.

The different approaches of different bosses to time recording can also cause stress for junior lawyers. The two main types seem to be…

• ‘Unapologetic Bill’ who wants you to record and charge the client for all the time spent, sending you into a state of fearful anticipation about the client’s reaction when they get the bill and inevitably dissect your time entries; and

• ‘Slash and burn Steve’ who consistently writes off huge swathes of your time, leaving you feeling insecure as to both the quality of your work and the amount of time you spent on it.

…and of course there are some others inbetween…

The ‘planning fallacy’

A big problem with time recording and providing fee estimates is that we’re just not as good as calculating how long something will take us as we think we are.

This is about more than lawyers trying to woo clients with low costs estimates. It relates to a psychological phenomenon known as the planning fallacy in which predictions about how much time will be needed to complete a future task display an optimism  bias and underestimate the time needed. This happens regardless of the fact that the person knows that similar past tasks have taken them longer to complete than planned. You only need to think about the chronic overrunning of projects like Crossrail, to see this fallacy in action. It was also found that we also routinely underestimate the risks of future actions and tend to overestimate their potential benefits. This is a pretty stark fact for lawyers to face given that our legal lives are spent weighing up the benefits of different courses of action.

The tyranny of time

I think that the more we can move away from markers of ‘success’ in the legal profession being based on time spent, the better. It’s true that firms have become better at recognising markers other than hours in the office such as community activities, volunteering, a particular contribution to morale or a team initiative and these things are now routinely discussed in appraisals and promotion discussions.

But how much impact can these initiatives have on lawyers’ mind-sets compared with the dominance of the minute-by-minute reminder of the ticking clock?

While these new markers are positive, there is also an unintended consequence in that they load more pressure on solicitors not only meet the financial targets but also to be the ‘all-singing, all-dancing rainmaker, company tennis player who also volunteers in his spare time.

Are you a human being or a human doing?

More needs to be done to steer lawyers away from this endless ‘productivity’ and I believe that the move towards more fixed fee work will hopefully help with this.

With my therapeutic clients, I often focus not on ‘productivity’ but on how to access ‘flow’ i.e. that feeling when you get fully immersed in a job and totally in the present. Flow helps us to access creativity, spontaneity and flexibility of thought, which are all helpful tools for lawyers. But it’s nigh on impossible to access this if you’re feeling under pressure to constantly be productive.

Another key aspect of wellness is taking time for reflection. For lawyers, this can mean time considering the broader strategy of a case and/or reflecting at the end of the case on lessons learned. It’s also healthy for lawyers to spend time thinking and talking about how their cases are affecting them and what they bring to their cases. In a system dominated by time recording such activities are often neglected, given that they are largely ‘unchargeable’.

I really hope that now is the time when we see a shift in culture so that wellness is at the forefront of the legal profession rather than just being paid lip service to. The recently appointed President of the Family Division, Sir Andrew McFarlane has this week urged lawyers to ‘look after themselves’ and to put their wellbeing at the heart of what they do. Let’s hope people listen.

Having been invited back to Oxford University recently to attend a dinner for former students, I returned to catch up with some old friends and to revisit some old haunts.

The speaker at the dinner, another former student, spoke very frankly about her experiences both of Oxbridge and of the House of Lords, given that she has now become a peer at the relatively tender age of 50.

Her observation that the majority of Oxford students and members of the House of Lords have one thing in common – a massive inferiority complex, was pretty remarkable.

At first blush, it seems a ridiculous proposition, given the bluster and apparent pomposity that many would associate with both these institutions and the people who inhabit them. But, even if that caricature of the typical Oxbridge student or peer were entirely true, there are of course many people who use such this sort of mask to disguise underlying feelings of insecurity.

Moving on, our speaker reminded me and my fellow former students, of that belief that so many Oxbridge students grip onto; that it was a ‘mistake’ that they had been accepted into this grandest and most intimidating of institutions. Naturally, there are some (supremely confident) exceptions to this rule but I remember many fellow students who could come up with a multitude of reasons for this apparent ‘mistake’; there had been a blip in the admissions process, the interviewers had been having an ‘off day’ or that he/she was the ‘token’ state school kid, taken on in order to make the college look more inclusive.

There are many explanations as to why this inferiority complex afflicts very ‘successful’ people. In the case of Oxbridge, the difficulty many students have in adjusting from being a big fish in a small pond at school to a small fish in a big pond of highly intelligent fish (and some highly competitive piranhas) at Oxbridge is at the top of the list. Heavy workloads and a pressure cooker environment also contribute to feelings of insecurity and inadequacy.

But I think that it’s about more than that.

It’s about the difficulty, psychologically, of adjusting to a life in which the institution is bigger than the person.

I’m talking about being part of an institution (usually old and grand) be it a public or boarding school, a ‘posh’ university or even a professional body, where the prestige of belonging to the institution is felt to be so important that the individual can’t help but feel inadequate in its shadow.

The person then commonly comes to believe that ‘fitting in’ with the culture of the institution, being considered to be successful there and seeing the experience through to the end must take precedence over their own wellbeing. This is a recipe for unhappiness.

Therapists talk about ‘conditions of worth’ i.e. these conditions that we feel we must meet in order to be good enough for others to approve of us. We usually get these from our parents at an early age but when we go to a grand old institution like Oxbridge, any pre-existing condition (often ‘I must be the most intelligent’) becomes even more entrenched. It’s one of those self-defeating patterns we fall into in life, particularly given that anyone who aims to be the ‘most intelligent’ student at Oxbridge is on a hiding to nothing.

We also talk in therapy about ‘life positions’, the ideal position being ‘I’m OK, You’re OK’. This position describes a feeling that we are good enough and that, broadly speaking, we think those around us are OK. Unfortunately, for those who attend a revered institution like Oxford and struggle with the experience, the fame and respect with which the institution is treated inevitably creates an unhealthy dynamic where the person’s position becomes ‘I’m not OK, you’re (i.e. Oxbridge) OK’. This is a very painful place to be.

All of the above, and the ups and downs I myself went through during those years in Oxford mean that I have a complicated relationship with my former university. I met wonderful and talented people there and I don’t regret my time there at all. What I do regret is what I couldn’t see at the time; that Oxford is, at its heart, not really about those ‘dreaming spires’, grand old buildings, funny gowns and Latin speeches. It’s about the talented, intelligent, funny, flawed, confused, insecure and often terrified people who go there.

I hope that the current crop of students who wander the cloisters that I used to inhabit can get somewhere close to feeling that they’re ‘good enough’ to be there. If they can believe that they’re just as important, and actually more so, than the institution then that, in my eyes, will be their biggest achievement.

Mediation is a great way to help people sort out the legal matters that come up when relationships break down.

The ability to work out the children arrangements as well as the money, property and belongings all in the same setting and with the same person is one of the great advantages of mediation. It also means you can avoid going near a courtroom and (hopefully) keep animosity to a minimum.

But of course there’s no ‘perfect’ way to resolve these messy matters and mediation is no exception.

My experience is that some clients struggle to get their head around the fact that:

1. Mediation is a voluntary process and you can’t force someone into it;
2. The mediator doesn’t make the decisions for you; the decisions are yours to make, the mediator just guides you; and
3. You don’t necessarily come out of it with a legally enforceable order.

Although they like the principles behind mediation, these clients often want more certainty that they’re going to get a legally enforceable outcome at the end. They may also want a mediator who is more directive and who can and will make some decisions for them.

I’m a pragmatist at heart and, in my view, mediation is a broad church that can be used flexibly and creatively in a way that gives many of these clients what they want.

The truth is that there are many mediators out there who are willing to take a pretty directive approach when explaining to clients what would be likely to happen in a court if their case got to that stage. Also, in the process of discussing with clients what their options are and testing them out, there are mediators who will make it pretty clear what they think the best options are. Obviously, it’s a fine line between giving legal information and giving legal advice (mediators are allowed to give the former but not the latter) but every mediator has a different view as to where this line needs to be drawn.

Some mediators are now also willing to draft an order for clients if the mediation is ‘successful’, setting out how the assets are going to be split, whether maintenance will be paid and so on. This marks a change from the traditional approach where a mediator would draft what is called a ‘Memorandum of Understanding’ or ‘Outcome Statement’ and one or other of the clients would then have to involve a solicitor to convert that document into an order.

Again, my experience has been that several clients have been befuddled as to why the mediator couldn’t just draft this order to save the client having to go back to their solicitor to do it. So I’m sure that many clients will welcome this development.

Such orders will need to be checked carefully by a judge before they are approved and I would hope that most people would be able to enlist a solicitor to give them even just a bit of advice before they agree to sign such an order. However, I can understand why clients want the mediator to draft the order. And in my view it’s safer for mediators to draft them than the clients themselves.

If a situation hasn’t been resolved in mediation then clients can get particularly fed up if they feel that they then have to go right back to square one. A couple of ways have been found to address this. One is that a lawyer can be brought into the mediation to give an opinion/evaluation as to what they think the outcome would be if it went to court. This opinion isn’t binding but it is often very effective at persuading people to agree terms. Alternatively, an arbitrator can be brought in who can give a binding decision on the issues at stake.

I believe that all these developments that I’ve mentioned are all ways in which mediation is evolving to become more able to meet clients’ needs. This should be our overriding aim and, as long as we are working ethically and with integrity, I have no problem with this direction of travel. Mediation is a great option and I think we owe it to the clients to do what we can to make it work for the widest possible client group.