My Blog

My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.

Friday, November 27, 2009

A Paradigm Shift?

When we make the shift from adversarial law to collaborative law, it is generally referred to by the collaborative trainers as a “Paradigm Shift”. This is a very useful philosophical or scientific term which evokes a sense of the shift in consciousness required by a litigation lawyer to practise collaboratively. It is a term familiar to Philosophers and Scientists but rarely encountered by lawyers. It means a fundamental change in basic beliefs or accepted norms/ ways of thinking to allow something new to emerge. Collaborative Law embraces a different way of relating to clients and to our colleagues as well as to our colleague’s client. It is an entirely different way of resolving the issues involved in a relationship breakdown or indeed any case. It employs a different style of negotiation than the one with which we lawyers are generally accustomed. Many of us will experience a sense of smoke coming out our ears just coping with the idea of those changes. Our legal practises are fraught enough with the possibilities of getting sued for the work we do reasonably comfortably let alone standing on our heads and trying to do things in a completely different way. Human Beings do not generally embrace change and lawyers still less so. We are also a very stressed profession and so making time for change and re-examination of how we do things is hard for us. We are stressed because we are anticipating being sued all the time, because the nature of our business is one where we deal with people in crisis situations and because lets face it, no one particularly likes us. As a profession, lawyers are generally a conservative bunch and that maybe just as well for the most part since being conservative is built in to much of what we do and the reasons people hire us to do it. There are, of course, some radical lawyers. That is not necessarily a contradiction in terms. It is perhaps easier for radical lawyers to envisage change positively but in the majority we are a conservative breed. However, if we could just get beyond our reservations in relation to collaboration and consider that Paradigm Shift, a whole new world is waiting to open out for us, one that genuinely offers clients a superior and better solution to their issues and which offers lawyer a less problematic environment in which to work.

Family Law is one of the most stressful areas of legal practise not because the law involved is especially difficult or the procedures for application to court inordinately intricate, but simply because the lawyer is dealing with a highly stressed client for the duration of their relationship with one another. Whether we acknowledge it or not this has an enormous impact on our own psyches as people. If we have had life experience that enables us to empathise with such clients, there are specific dangers inherent in this, namely the potential to over identify. This in turn will prevent objectivity making it difficult to direct the client or to negotiate with a colleague in any reasonable way. I am not one of those lawyers who thinks that we should be entirely unemotional to be effective. I find that if I can emotionally relate to a client as well as intellectually I work better and harder for that client. As in so many things it is a question of balance. For many family lawyers and indeed any professionals working with families there is also the danger of an unexamined reliving of one’s own life situation and interpreting a client’s issues through that prism. These dangers are particularly acute if they are unrealised. If we regard ourselves as a different order of being to our clients, distance ourselves with no specific training on how to do that effectively and at the same time be able to connect with the client and confine our role to legal advice then we will frequently be at cross purposes with our clients. Clients cannot compartmentalise themselves and their issues into neat packages designed to meet our professional criteria. We must make our professional criteria mould to the client’s needs. For very many of us family lawyers it is the struggle to meet our client’s real needs within the system in which we work that causes us such stress and at times genuine heartache. Such lawyers should welcome the opportunity to learn and embrace a new way of solving the sometimes difficult and intricate problems arising from a family breakdown. All you have to lose is your frustration and stress .....your choice!

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