More on Non-Legal Skills for Lawyers

1. The Psychological Professional’s Role in Mediation

The Achilles heel of mediation is that, without the appropriate psychological awareness, the one thing that needs to be mediated – the client’s negative beliefs systems relating to the separated co-parent – are not properly expressed or addressed. Without dealing with the underlying causes of that negativity, the parties cannot unify behind a common positive goal. Consequently, any attempt to mediate may feel like an attempt to force agreement on the parties and so result in as much polarisation and resistance as does litigation.

By way of illustration, research undertaken by the Ministry of Justice in relation to longer-term outcomes of in-court mediation found that about 60% of agreements reached by parents had been dropped, or had broken down, by the two year follow up point – this being due to one or both of the adults not supporting the agreement rather an adaptive change to circumstances.

Further, two years after mediation, the majority of parents involved in that research continued to report a negative relationship with their co-parent that had not improved, or had worsened. At the two year follow up point, the number of children with borderline or abnormal scores for reporting psychological distress on a standardised measure remained about double the United Kingdom norm. One of the main conclusions reached in that report was that there needed to be more relationship based or therapeutically-orientated interventions, under the umbrella of public health rather than the family justice system.

2. Getting the Best from Court Appointed Experts

Due to their lack of mental health expertise, lawyers have great difficulty in effectively instructing court appointed psychiatric or psychological experts in terms that result in advice and opinion that best inform the court. Since, typically, an expert in the same field plays no part in the process of formulating the correct questions to the court appointed expert, there is a risk of the questions posed being too general and over simplistic.

Mental health care professionals working closely with their mutual clients’ legal team can play a vital role in ensuring that the court appointed expert is appropriately instructed and their reports interpreted beyond the purely clinical diagnosis. In this way, the inherent risk in such reports – that they are frequently the result of a very short involuntary clinical assessment where the risk of a negative report is uppermost in the parents’ mind when being assessed, as opposed to a voluntary doctor-patient assessment – can be addressed by the drafting of instructions and questions to the court-appointed expert which contain an appropriate level of technical insight.