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.

Importance of Non-Legal Skills

What is it then that clients want from their family lawyers at potentially the most difficult time of their lives and regarding the most important issue in their lives the determination of the well-being of their children? Drawing upon both my personal and professional experience, the latter as a commercial law partner and now full-time family lawyer (during the course of which, in addition to my own clients, I have spoken to many parents on a pro bono and second opinion basis), it is clear that the parents’ overwhelming concern is that the application of legal skills alone leads to them experiencing acute feelings of disempowerment, disengagement, helplessness, not being listened to and paternalism.

This experience has informed opinions that the following approach is essential to addressing these client concerns:

•Taking a holistic approach to the client's needs beyond simply perceiving their case in terms of relevant fact and law for the purpose of "black and white" legal analysis based on legal precedent, since this has the effect of negating the uniqueness of each client's personal circumstances and family dynamic.

•Supporting the client emotionally and psychologically to ensure they feel listened to and their case articulated in a manner which emphasises their genuine child centric concerns. This minimises the risk that the client adopts a non-child centric position which frequently involves the prosecution of their legal case and interaction with the other parent containing a series of threats, allegations, denials and counter allegations, which inevitably causes great hostility, upset and resentment between the parents and the legal system.
•Developing and agreeing a plan of action with the client around a clearly defined strategy for communicating the parent’s child centric concerns.

•Offering a level of service that reflects the client's emotional needs and allows for regular, open communication between client and lawyer whenever it is required by the client.

•Remaining focused on providing a "can-do" approach and solutions to any matter that the client wishes to include as part of his case, rather than a lawyer driven "I know best" approach which ultimately results in a sense of helplessness in the client. The established approach where lawyers repeatedly emphasise the risks of any given course of action without suggesting a possible alternative solution is not seen by clients as providing any added value to their case.