Forum Recap: Emotional Readiness in Law
On Wednesday, 21 November 2018, the Research for Change Forum held its first event of the 2018-19 academic year: Emotional Readiness in Law! We were honoured to have the distinguished presence of Iain Christie, Barrister and Mediator at 4-5 Gray's Inn, and Hannah Holdaway, practicing family law solicitor and current Bristol postgraduate student.
Iain was first to speak. While lawyers are legally trained, he points out that they often lack soft skills and other related emotional training, despite law being such a personal profession where lawyers need to connect, communicate and build trusting relationships. A legal process which occupies Parliament such as Brexit often involves high emotional stakes. Even when judges decide cases, they occasionally depart from the factual matrix to assess emotional concerns - formulating the desired outcome, before finding legal reasons to properly account for it.
What does it mean to be emotionally ready, in a legal context? Iain defines it as the relationship between preparing for something, and actually doing it; the former reinforces the latter. To clients who approach lawyers, litigation is arcane, unfamiliar, and likely to evoke a whole range of fight or flight responses, where fear and anxiety are high. It is this fight or flight response that prompts clients to fear for their welfare, irrationally giving the strangest instruction and being willing to pay exorbitantly for legal services. Legal practitioners need provide legal services, but also understand the emotional stakes driving the client.
Iain pointed out the University of Exeter's project, Creating Paths to Family Justice; aimed at informing parties what mediation is and how to prepare for it, as well as the possible emotions, consequences and outcomes. The project, along with much other legal research, asserts that mediation works best when both parties understand the issues, the mediation process, and most importantly, accept the breakdown. When one party accepts the breakdown, while the other doesn't, grief often leads to an unequal bargaining position. Conversely, pressing ahead with court proceedings usually exacaberates emotional issues, especially when children are involved; parties often jump to conclusions and raise emotional stakes when served legal notice, reducing the probability of amicable and proper agreement. While parties can be advised to take time to come to terms with things, time is often a luxury that legal proceedings do not offer, owing to tight litigation deadlines.
Even in corporate settings, emotional issues are not far off. While it is true that Family Law is a very personal area of law with huge and dire consequences for the parties, we are human and have emotional attachment; Iain quoted a fictional scenario where two best friends who founded a business together and saw it through to maturity fell through in a partnership dispute. Emotional issues clearly affect many areas of law.
CAFCAS, the Children and Family Court Advisory Service, created the emotional readiness assessment tool; a model of ten questions to assess a party's emotional state and in turn, readiness to enter into legal proceedings. If a client is unprepared, it may be the role of legal practitioners to advise them to slow down, and think in a more rational fashion.
Somberly, lawyers are not therapists, and lawyers must beware of their own limits and liabilities, and what they can and cannot do. Iain, being both a lawyer and an actor, often roleplays client mock interviews or practice runs with his colleagues. Iain stressed that lawyers must know their limits, but they are on their client's side. Parties want a competent lawyer, but before all else, a lawyer that is on their side. Even if there is a poor chance of success, lawyers have the responsibility to give tough legal advice and do everything within their power to secure that small success.
Hannah touched on her research perspectives, assessing how dispute resolution is used with regards to divorce cases and financial settlements. In all the means of doing so, be it client self-regulted discussions, negotiations with solicitors, arbitration or mediation, there are two stages: Firstly, working out the asset pot, and secondly, how to divide it up. The legal framework on this is very fact-based; on the list of factors that settle accounts, the factual nature of what one's pension is worth, for example, doesn't give parties space to discuss or recognise emotional readiness. Lawyers have often found this inconsistent as clients are more emotional than moneyminded, and the law fails to recognise the former in the nature of disputes. For example, when a couple separates, the factors taken into account are factual - for example, blame and fault, but suppose the wife finds out that the husband has perpetually lied about an issue - it is possible that the wife questions her entire marraige and entire life, so such emotional events have a disproportionate toll on clients which are often unaccounted for. Unfortunately - lawyers are not counsellers, despite clients often demanding lawyer/counseller all in ones.
While Hannah agreed with Iain that clients' trust have to be earned that lawyers are on their side, lawyers face the simultaneous difficulty of assessing the strength of claim and possible arguments of the other party. While it is relatively easy to advise clients on the strengths of their case, it is harder to express the strengths of the other party without losing their client's trust.
Hannah's research turns on the extent and idea of emotional support. While lawyers may be tempted to apply the law to the facts and then routinely inform the client what their legal position is, Hannah would advise otherwise: Lawyers must understand the client's emotional limits, if information is to be passed on, lawyers must make clients aware of their options and ensure clients attest proper weight to factors so that they can make decisions in their best welfare. Clients do not always understand or remember the law, and hence, a lot of communication skills, coupled with empathy, is necessary.
The Research for Legal Change Forum most sincerely thanks Iain and Hannah for joining us for an eventful, educational, and entertaining night. Connect with us to be updated on future events!
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