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Lawyers! Are your clocks making you ill?

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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.

‘Dreaming Spires’ and the myth of “the mistake”

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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.

Putting the muscle into mediation

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

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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.

It’s not just the clients that split

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When I tell people that I was a divorce lawyer for a long time, reactions tend to be either “oooh wasn’t that depressing?” or “how fascinating”. TV programmes like ‘The Split’ have highlighted this curious job in which, for a relatively short time, you become a huge part of someone’s world at a moment when it is, at best, topsy turvy and unsettling and, at worst full of heartache and stress.

Some say that lawyers aren’t there to do the ‘touchy feely’ bit and shouldn’t deal in feelings. I disagree. There is no separating the emotions from the practical and legal stuff in these situations – the feelings are precisely why, sadly, many divorce negotiations still break down and end up in court battles. Former couples aren’t arguing over the ‘stuff’; they’re arguing because they’re hurt.

Lawyers can help most when they seek to understand not only the emotions their clients are going through but also a bit about the psychological processes that may be going on underneath.

The concept of splitting, introduced by a psychotherapist called Melanie Klein describes 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. As adults, we are prone to regressing into this all or nothing way of thinking during times of stress, such as when a relationship breaks down. Klein called this way of thinking the paranoid schizoid position.

The other position; the depressive position describes a state in which we are able to see the good and bad in both others and in ourselves; a more nuanced view.

I think that most divorce lawyers would recognise that it is pretty common for their clients to get into ‘paranoid schizoid’ thinking.

A smaller number would recognise that they too can easily fall into the same trap of only seeing the ‘bad’ in their client’s ex and their client’s ex’s lawyer. And the current divorce laws, which still largely focus on finding blame, exacerbate this way of thinking.

As lawyers, we can get into black and white thinking (as all humans are prone to do) more often than we’d like to admit. What this leads to is fear and protectionism in how cases are conducted, which makes resolving them out of court, such as through mediation, very difficult.

Of course, there is a tension between the traditional role of the lawyer to ‘protect’ their client’s interests and the movement in family law in recent years towards more open and amicable ways of dealing with things, such as through mediation.

It’s important to acknowledge this tension and the stress that this can put on lawyers. Lawyers should be given an opportunity to talk about their feelings about their clients and their work and how the stresses of practice impact on them. It usually makes them happier people and better lawyers.

Some firms are now offering their lawyers reflective practice/supervision sessions with a therapist so that they can do just this.

Lawyers are not robots and if we can admit and look at our own ‘baggage’ and reactions to our clients and their disputes and how this can seep into our work, then we’re much better placed to help them.

We can then encourage the clients towards a more nuanced approach rather than taking on their arguments as our own.

‘In The Club…’ Or Not

There’s a reason why they call being pregnant ‘in the club’ and, for those who struggle to conceive, it can feel like being denied access to a club that everyone around you seems to be joining with ease.

IVF is now in its 40th year and continues to help thousands of people to join that ‘club’ but cuts in NHS funding mean that, devastatingly, many won’t.

If you’re going through treatment or you’re yet to join the ‘club’ and feeling like you are on the outside looking in, here are my 7 suggestions for taking care of yourself…

  1. Radiators not drains

Think of the people in your life and ask yourself whether you feel warm and nurtured after spending time with them or just drained. Dealing with infertility can leave you feeing depleted and a bit like Velcro; sensitive and prone to picking up any negativity in your environment. So you need to spend time around people who will be gentle with your fragile feelings.

Drains are easily spotted by their keenness to offer advice you haven’t asked for and ‘helpful’ comments like the following:

  • Don’t worry; just relax – it will happen when you least expect it;
  • Calm down;
  • Have you tried [insert sexual position of choice]? Me and my partner did it constantly and it worked for us;
  • Cheer up;
  • Positive Mental Attitude; and
  • Have you tried getting really drunk/having a holiday/putting it out of your mind?

Don’t give them your time.

Be careful as well about what you expose yourself to in the media. By all means read articles that you find hopeful but avoid those publications (you know the ones I mean) that regularly print scare stories about women’s decreasing fertility and shaming tales of ‘career’ women putting their jobs before trying to have a baby.

  1. It’s ok to be angry

It’s important to understand that it’s not about something you or your partner did or didn’t do – it’s just that life isn’t fair.

No it’s not fair that your friend who drinks like a fish and only started trying to conceive three minutes ago is already pregnant.

No, it’s not fair that every second person in London is wearing a ‘Baby on Board’ badge and you spend your life giving your seat up for them on the tube after yet another clinic appointment.

It’s OK that you’re angry. You have good reason to be.

Women in particular often feel like it’s not acceptable to be angry so we mask it with ‘niceness’. These masks will use up energy that you simply don’t have to spare. Use your anger as a signal to show you what you need. If you need to take time out from certain situations and friendships for a little while, it’s ok. Prioritise yourself; don’t waste time and energy focusing on others instead of you. The other commitments in your life may have to take a back seat for a while; this may mean reducing your working hours or taking a sabbatical.

Do what you need to do to take care of yourself and don’t underestimate the battle you’re engaged in.

  1. ‘Compare down’ not ‘up’.

There is no joy to be found comparing yourself with someone you (wrongly) believe is better than you in some way (so step away from Facebook). Instead, look at your achievements and acknowledge the unique gifts you have. This is not about beating yourself over the head with the ‘I must be grateful’ stick; it’s about getting a broader perspective on your current situation.

Remember that our pain can help us to connect with others’ pain and to be there for others. While this may be the last thing you want to do at the moment, listening to someone else’s problems can provide a temporary respite from the maelstrom of your own head. Your experience can give you huge reserves of empathy and sensitivity to others’ struggles.

  1. Surrender to win

Identify what you can control (e.g. going to medical appointments, acupuncturists etc) do what you need to do and let go of the rest. Sounds simple doesn’t it? Difficult (but possible) to actually do. There’s freedom to be found in identifying what you can control and what you can’t and in keeping your focus on the former. The stoic philosophers had some useful stuff to say about this, as do the addiction recovery community who use the serenity prayer: ‘God, grant me the serenity to accept the things I cannot change, the courage to change the things I can, and the wisdom to know the difference’.

If you can manage to do this, even a little bit, then you will know what it feels like to surrender. It feels like after you’ve had a big cry when all of the pent up tension has gone and you’re left with a feeling of fragile peace.

The nature of dealing with infertility is that you’ll have many other days when you’re railing against the world about the unfairness of it all. But you will have other moments when you can find this sort of peace. And once you’ve experienced it, you’ll know that that’s available to you when you need it.

  1. Learn to love your body again (or at least give this a go)

It’s easy to fall into self-blame and to feel that your body is somehow ‘defective’ and that you are less than ‘normal’ if it’s proving hard to conceive. This is a lie. Around 1 in 7 couples (and possibly more) in the UK have difficulty conceiving. You are not an oddity nor are you defective. You are a normal person going through a normal, albeit painful experience. Try to treat yourself and your body with gentleness and kindness as you would a much loved friend and when you notice your inner self-critical voice, acknowledge it but don’t buy into what it is telling you.

  1. Work on communication with your partner

Recently I watched the US family drama ‘This Is Us’ and I thought how wonderful life would be if we all communicated as ‘functionally’ and were as emotionally open and honest in our relationships as some of the characters in that show. My experience is that life’s not like that. Women are often more open than men and if, for example, our partner is a bit of a closed book and reacting differently to us to the situation (which is really common), it can be easy to take this as evidence that they don’t care.

Try to understand how your partner shows his/her feelings; including the subtler signs. Try to be there for each other, even in your differences. Infertility is one of the toughest things a couple can go through and you’re going to have difficulties, disagreements and probably some stinking barnies along the way. He/she may not always be able to give you what you think you need at the time you need it. This is normal. it doesn’t mean there’s something fundamentally wrong with the relationship. Good friends and family are also a vital resource.

  1. Identify the ‘dark gift’

Author Kent Newburn talks about how every difficult situation in life contains a ‘dark gift’. Try to identify the dark gift in your situation. There will be one. This situation could be the catalyst for you to rip up your life ‘plan’ and start again. I’ve known many people find a creative outlet as a result of infertility, including blogging, drawing, training as an acupuncturist or as a therapist for example. Some get a pet that they cherish. Many develop strong networks with others going through similar situations and friendships that they would not have otherwise had. Some read and/or write inspiring books. These are beautiful things borne out of pain.

There is a gift there in the darkness for you. You just need to find it. I wish you luck with it all

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