What is the purpose of this interaction?

I must admit to being rather worried about writing this article. What I’ve set out below are some of the golden rules for practise I’ve arrived at over nearly 20 years of work in family law, which I use constantly and which make a big difference both for me and for my clients. The concern is a selfish one; am I giving away my secret sauce recipe, and in so doing giving away my competitive edge? 

I’m battling the insecurity because I want to see a world where more family professionals do things in better ways, regardless of what it means for me. I know from experience that these are ten very effective techniques so surely, I'm telling myself, if they’re used more widely that would be a good thing (and not to share them would violate rule 8).

1               There’s always a choice.

It’s a simple idea that’s both obvious and overlooked. There’s always a choice. The choice for clients, regrettably, is often between a number of unattractive options, but they are options nonetheless.

Many clients (and professionals) fall into the trap of thinking they have ‘no choice’ but to do something, whether it be to ‘cave’ to the leveraged negotiating position of the other party, or to ‘let go’ of a point that’s too expensive to pursue, or something else. It can be a lot easier to think that one is simply along for the ride. For one thing it provides almost endless ammunition to complain later about an outcome that’s less than you wanted. I was bullied into this, or pressured into that; I had no choice and look what was imposed upon me. It wasn’t my fault. This is, fundamentally, often both incorrect as a fact and immature as a mindset. It absolves responsibility and disempowers a person from agency in their own life. 

In Man’s Search for Meaning, Viktor Frankl wrote:

In the most extreme of situations – Frankl’s context being that of a concentration camp – he still found the power to choose, even if that choice was entirely internal, in the form of an unwillingness to be overcome or defeated by his circumstances. This is one of the central lessons of existence in many ways, and one of the key tenets of existential philosophy and psychotherapy, namely that as a sentient human being the exercise of daily life is in making choices, one after the other, from waking until sleep.

We are all free to choose, and if we ignore this simple truth then at least two things happen:

First, we make choices anyway, and thus deny the reality of what is happening. This disconnects us from the link between what we do and what follows from what we do, creating an unavoidable conflict to resolve. We have to pretend (consciously or subconsciously) that we are only being ‘done to’, that the world and its consequences are merely happening to us and prevailing upon us, when in fact we are at least partly responsible for the state of our lives. This idea is, admittedly, scary at times, hence why it’s often easier to pretend otherwise. 

And then second, we miss the opportunity to be deliberate and purposeful, and perhaps end up making poor choices by default when positive choices by design were available to us. Colloquially, not choosing is still a choice, and the things that flow from a passive attitude to life are usually negative because we allow those around us to dominate, and cynical agendas can more easily prevail. By grasping the nettle of freedom of choice we can, in fact, make better choices and improve our situations. It may be gradual, and it may not always work out, but it’s better than lying to ourselves.

There’s enormous value in helping a client to see this reality because it transforms the experience of going through a difficult event like the end of a relationship. As advisors one of our key jobs is to help our clients identify their choices and then decide between them. Making the best choice from what’s available, with a view to improving the future outlook as much as possible, is an empowering process. It changes a person from passenger to pilot and reconnects someone with a core truth which is that the only thing one can ever do, really, is choose. 

• What choices do we have here?
• What is the choice we are making?

If you’re not doing this with your clients, then what are you doing with them?

There’s infinitely more power and freedom in saying ‘I made the best choices I could with the information I had, and I couldn’t have done more to influence the outcome of this process,’ than there is in saying ‘It was nothing to do with me, I had no choice, and I had no influence over the outcome of this process.’

This is true regardless of how well or badly the process goes, and what it means is that when things don’t go well, which of course sometimes they don’t, the process of making one’s peace with the outcome and dealing with it is that much easier. And why is this? First it’s because there’s no room for regret. Second, poetically, it’s because by making choices with open eyes before, you’ve learned that dealing with the outcome is the same task: to continue making the best choices you can.

2               Seek first to understand.

Much as we might focus on whether our clients understand the situation, the law, and their choices, how carefully do we try to make sure we understand our clients? As the saying goes: you’ve got two ears and one mouth, so listen twice as much as you speak.

A common mistake I see is where a person’s situation hasn’t been explored with sufficient depth. Those extra levels of ‘why’ to interrogate the reasons behind something, and the reasons behind those reasons, and so on and so on, are intended to arrive at first principles – the building blocks of a person’s value system and the basis upon which important decisions ought to be made. How much do we ever seek to explore this with our clients?

Or to consider it from another direction, how much effort do we spend seeking to understand the person on the ‘other side’ of a situation? A negotiated outcome is almost always the primary goal, and a successful negotiation is one that solves problems and arrives at compromises for each of the participants. This means that one of the main jobs in a dispute is to solve the other person’s problems. You can’t do this without understanding what those problems are, and what are the main measurements (the first principles) via which that person will evaluate whether your proposed solution fits the bill.

One of the first tasks, and a task to which you should regularly return throughout any dispute resolution process, is to try and understand the situation, the participants, and the principles involved. If you don’t understand the situation, how can you make the best choice? How can you be most useful?

For more on this, written better than I might hope to do it myself, I can’t recommend The 7 Habits of Highly Effective People, by Stephen Covey, enough. The phrase ‘seek first to understand, then to be understood’ is the title of Habit number 5, and has stuck with me since I first read the book nearly 20 years ago.

3               You can’t wear two hats at once.

Edward de Bono captures this idea in his book Six Thinking Hats, where he imagines that the different types of thinking are represented by different coloured hats. This relates to the fact that different areas of the brain are responsible for different things; when you’re having an emotional reaction a different section of your brain is engaged than when you’re doing a maths puzzle, and a different section again is in charge of painting a picture or writing a poem. 

The brain can do many different things, but it can’t do them all at once. A popular aphorism amongst therapists is ‘you can’t think and feel at the same time.’ 

A client who is in the middle of an emotional reaction – an entirely normal and understandable part of the process in family law – is literally physically incapable of understanding the complexities of the legal doctrine you’re trying to explain to them. 

What ‘mode’ is your client in at the moment? Is there anything you can do to help shift their thinking? I often take some time at the start of client meetings to deliberately engage with emotions (red hat thinking). This is not merely because unventilated emotions can be an obstacle to progressing to other things like analytical thinking (black hat) and idea generation (green hat), but because emotions are such an important part of this process. 

The red ‘emotion’ hat is underrated. Many advisors avoid emotions both for their own comfort and also due a misconception that emotions get in the way of good decisions. Unregulated or unrecognised emotions can be an issue, but when dealt with appropriately emotions are usually the key that unlocks a problem. Decisions have multiple components and research has showed that people don’t make important decisions solely on the facts and logical reasons; it’s only once the emotions are on board that progress is made. 

It can be intimidating at first, inviting a client to share their emotions – what if you open Pandora's box and can't get the lid back on? A simple and surprisingly effective technique can be to simply acknowledge what a client is feeling. I’m not exaggerating when I say: acknowledgement is so effective that it almost feels like a secret weapon.

It is a hugely powerful tool both externally – i.e. for advisors to demonstrate that clients have been understood – as well as internally – i.e. for clients to identify and allow space for these strong feelings. Try a version of this phrase with your next client: ‘that must have been really hard.’ It can work like magic.

In terms of moving forwards, it can be enough to see that those feelings are there, acknowledge them carefully and in so doing give them an appropriate place within the context of a decision.

Take the time to address the different ways of thinking that are needed for progress on key decisions. A family law process is just as much emotional as it is rational, and imaginative as it is factual.

We can’t wear the different hats at once, but it’s still worth wearing them all.

4               Repetition is important.

Human beings usually need to hear important or complicated information more than once. This is easier to see in children – the relentlessness with which one has to remind them to wear a coat in the winter, to brush their teeth every day, to PLEASE JUST EAT THEIR FOOD, and so many other things over and over and over again is as unavoidable as it is tedious. Why on earth should it be necessary to say such obvious things so many times?

I find a helpful path through the tedium by reminding myself (ironically - repeating to myself) that the reason these things are simple and obvious is because I've already had years and years of repetition in them and they're embedded in my brain. It's important to recognise that in teaching children to clean their teeth, or their times tables, or tell the time, the mechanism of learning that’s being engaged is universal - human beings learn by repetition and pattern recognition, and that is true of adults as well.

What’s most important in the advice we give is not that we have given it, but that it has been understood. So write your advice down, record it, say it again, get the client to re-read it, ask the client to explain it back to you – repeat the important stuff because that’s the way it goes in. 

This connects back into the idea of choice – the most important choices are the ones the clients are making, and how can they make their choices properly if they don’t understand?

And of course people in heightened states – a normal and expected state for family law clients – are even less able to listen carefully, and will need things repeated even more often than average.

• Parent: ‘Just clean your teeth / put on your coat / eat your dinner! Why do I have to tell you the same things over and over and over again?!’
• Psychologist: ‘Because that’s literally how all human beings learn.’

5               If it’s a good idea today, it’ll be a good idea tomorrow.

This is a useful rule I often share with clients on making decisions about important things. Unless something is genuinely urgent – and few things actually are – then if the idea is a good one today, it’ll still be a good one tomorrow. 

It’s another way of packaging the ancient wisdom of ‘sleeping on it’, and it’s one of those very useful things (like crop rotation) where human beings figured out that it works long before we figured out why it works. 

The neuroscience of the 20^th and 21^st centuries has taught us a lot about the benefits of sleep, not least of which is the fact that our brains process and organise the day’s information overnight. We often wake up with a clarity that wasn’t present the day before because of the work our brains do in the background; this is important thinking that often needs to be done before best understanding and careful decision-making can be achieved. 

An interesting connection exists between this and procrastination – which I’ve long suspected is as much about needing enough time to think about something properly as it is about mere task avoidance. Deliberate analysis and conscious consideration are not the only parts of the work our brains undertake when tasked with important problems. As a practical matter, therefore, time is a crucial tool we need to deploy both for ourselves and our clients. 

A way this might apply to us as advisors, not just to our clients, is in thinking about how urgent the things are that our clients come to us with. A stressed out client in a flap about a recent development brings a great deal of panicky, urgent energy. Those feelings can be contagious and it can be very useful to take a step back, slow the tempo of the situation, and allow the opportunity for a considered response at a more manageable pace. Sometimes it’s not just the advice we give, but the framework for dealing with a situation that’s a really valuable part of the service we offer.

6               What is the purpose of this interaction? 

This is one of those things that once you see, you can’t unsee.

The number of people who interact with one another for no clear reason other than because they happen to be in the same place at the same time is remarkable. How many arguments are nothing more than one person saying they believe X, and the other person saying they believe Y? Okay, they disagree, so what? Why are they having the disagreement, what are they trying to achieve? Often the answer is nothing; all that’s happening is both participants are making one another unhappy for no reason at all.

If you don’t consider why you are interacting with someone, how are you going to be most effective? That letter you’re about to write in response to the one you’ve received, where you’re going to point out all the ways they’re wrong and you’re right – why are you writing it? That conversation before going into court where you tell the other lawyer your brilliant arguments and why their case is rubbish, what’s the use of that? 

A lot of people – not least lawyers – respond to something they disagree with almost out of instinct. But just because you can respond, doesn’t mean you should. Just because you’re right, doesn’t mean that pointing it out achieves anything.

Writing a letter should improve your client’s situation or the situation overall. Does arguing by correspondence actually help? Or might it help to write something conciliatory or, daringly, nothing at all?

This change in mindset can not only mean avoiding interactions that previously you over-valued – the aggy letter you don’t need to send or the clever question you don’t need to ask – but prioritising interactions you previously underestimated. The time you spend listening to a client speak about their feelings, even though they don’t seem to have any factual relevance, can be some of the most purposeful time you spend.

7               It’s not how you talk, it’s how they listen

Most people, when thinking ahead to a future interaction, start with planning what they’re going to say. Whether it’s a presentation, closing argument, a letter or application form, or whatever else, the common questions might be: What message am I trying get across? What are the main points I want to make? How am I going to say or write this in the best way?

Few people, regrettably, start instead with who’s on the other end – who is the recipient and how are they going to perceive what I say or write? The way you present something should change depending on the audience. The way people listen can vary wildly depending on personality and context, and if you don’t take that into account from the outset, you will lose the opportunity to be as persuasive as you can. An easy example: A judge, trained to analyse documents and submissions and who applies a set of codified rules in how they do that analysis, is a completely different audience than a client, who probably has no training either in the law or in how to make complex decisions. So the way you speak to each should be completely different as well.

A more nuanced example: A letter containing an offer of settlement. I can’t count the number of settlement proposal letters I’ve read that aggressively set out all the ways in which the recipient’s case is awful or their conduct objectionable. These letters feel like they’ve been written ‘for the court’ more than they’ve been written for the recipient. And if your offer letter isn’t actually more than a strategic step in the litigation, intended to protect a costs position, then maybe I can see the point. (Though really, I know judges are almost universally unimpressed with such a style of writing). If the offer letter is what it sets out to be – an offer of settlement – then presumably the intention is that its effect is to persuade, such that it will be accepted. In which case the major consideration is how the recipient perceives the contents; every paragraph should be crafted with a view to persuading that specific reader to agree.

A conciliatory or, dare I say it, actively pleasant tone might be more effective in reaching the desired outcome, even if it's not the cleverest thing or the best argument available.

This connects back to considering the purpose of an interaction and understanding the participants – ask not just what you’re trying to achieve but who are you interacting with. Don’t just ask yourself ‘how am I going to say this?’ but also ‘how are they going to hear it?’

8               Be useful 

This has long been one of my golden rules. Always be useful. That’s the job.

In much the same vein as ‘what is the purpose of this interaction’ is another touchstone question: is this useful?

Will writing this letter, filing this document, asking this question, making this argument – or whatever other step you’re considering making with and for your client – improve their case? Unless the answer is yes, don’t do it. You might be surprised by how much shorter your letters, case documents, questions and submissions will get.

The more nuanced point is there are so many different ways of being useful in this job beyond merely the measurables of an outcome. More than just the numbers of the financial settlement, or the amount of days every two weeks the children are in your client’s care, or the costs order you were able to secure. ‘Useful’ for a family law client very often means:

• Helping them to feel heard and understood.
• Helping them to understand their ex.
• Empowering them to make positive choices.
• Teaching them to think differently and reframe their situation.
• Teaching them the skills to communicate more effectively.
• Supporting them to walk away from conflict, rather than towards it.

Another way to look at the concept of utility in our jobs is this: Two clients can have exactly the same outcome on paper but completely different perceptions of how well things have gone. That’s because their experience of the process and the route that’s been taken to get the outcome is often more important than the outcome itself. A really useful family law professional is one who can see all the different opportunities to help their clients. 

9               Don’t lose the big picture in the process.

The value of a process can sometimes also be its disadvantage. A court application, to choose an easy example, brings a great deal of structure as well as rules and delineated steps to follow. Convert the client enquiry, then gather this information, then make that application, then send this fee note, then complete that document, then attend this hearing, then obtain that report, then have a conference with counsel, then prepare this letter or this witness statement, and so on and so forth through to an outcome.

A clear process with rules and procedures can be a very good step-by-step guide to what to do next, which when faced with a complex problem can be massively useful – the bite size process of eating the elephant. 

The problems come when that process dominates the landscape and leaves no room for anything else. Taking the time to step back from a situation, look at it from another point of view, ask what’s really important, apply the test of common sense – there are many generic phrases available that all speak to the same thing: if you just put your head down and focus on the process, you can easily forget what the process is trying to do. The process is there as a route to solving a problem and making a situation better. But it is only one route, and it might not be the best one. Litigation may seem like the only option at one point, but that might change. 

And if you’ve been following the other advice in this article, then hopefully that will change. Hopefully if you’re listening, trying to understand, being useful and helping people to solve one another’s problems, then the strict process and imposed results of litigation will not be needed. But you won’t notice this if you’re not paying attention.

Take a moment on your cases and with your clients to stop and evaluate where you’re up to, what you’re doing, what route you’re taking, and whether that represents the optimal way of achieving the best outcome. It is rarely time wasted; it’s usually some of the best time spent. 

One of the great advantages of working with other professionals is the change in perspective. Both as a barrister and as a mediator I often find myself asking questions that haven’t been asked for a long time, or even at all, because I’ve not been focused on getting from one stage of the process to the next. I have the opportunity of coming into a situation with fresh eyes and, because I need to do that extra work to understand something I’ve not been involved with before, some useful questions from me can help unlock a situation that seemed stuck.

Consider bringing in someone else to assist a situation, whether it’s a mediator, coach, financial advisor, neutral evaluator or whoever else; the change in perspective both from them and also that it will prompt in yourself could be the difference the situation has been waiting for.

I’d be grateful if you would consider contacting me for support – I offer a variety of services to suit a range of situations. I can advise and assist clients at any stage of a process, jointly or individually. The sooner the better is frequently a good rule of thumb.

10            Repetition is important.

Human beings usually need to hear important or complicated information more than once.

Today’s track is a great way to start teaching kids about rule 1 – Kristen Bell singing The Next Right Thing from Frozen 2.

Today’s book recommendation is Man’s Search for Meaning, by Viktor Frankl.

Today’s video is about a tricky choice in a fun context, known as the Monty Hall Problem.

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Get in touch if you’re interested in any of my services. As well as a barrister I’m an experienced mediator, speaker and high conflict specialist.

My legal services are offered separately via my chambers website; my clerks manage my legal and mediation work and their contact details are here. I also provide in-house training on a variety of subjects including first client meetings. My individual and firm-wide consultancy focuses on improving productivity, wellbeing and communication. To get in touch with me direct, please subscribe then go to the Contact page above.