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Emotion and Litigation: Grappling With Mental Health

Jackie Bennion

21 October 2019

Despite the stigma attached to mental health, the subject is seeping into the national conversation as figures from the Royal Family to the world of sports and entertainment open up with their experiences.

The wealth management industry is also getting better at talking about it and sharing best workplace practices. At last week's annual PIMFA financial services summit in London, a panel of City veterans spoke with appreciable candour about the scourge of mental health issues - precipitated by the industry's high-stakes environment, and for years largely unaddressed. This publication will be reporting on some of the helpful insights that came out of that discussion. Before that, and after last week's Mental Health Awareness Day, we spoke with  about the firm's work with clients affected by mental health while navigating divorce, and how current laws are only compounding the situation.

In a recent questionnaire on mental health sent to 60-plus solicitors across the firm, it found that the vast majority (87 per cent) of clients suffer from mental health problems early on in litigation proceedings, such as in a divorce or child cases, but only about 10 per cent asked for help.

UK divorce laws have been criticised for the enormous strain they put on couples who are required to set out substantial reasons in a petition for why the marriage has broken down. Solicitors argue that this approach only stokes tensions and can ramp up hostilities to such a degree that it detracts from the important issues of child custody and reaching a fair financial settlement.

When Irwin Mitchell’s lawyers were asked whether clients’ mental health issues were having a direct affect on divorce or family proceedings, almost all of them said yes, and that it was usually the case that clients wanted to settle earlier or give up completely because of the emotional anguish.

“Mental health can have a massive effect on how clients instruct us to operate during their case, and the current laws don’t help as it can encourage people to be more adversarial than they originally set out to be,” said Ros Bever, partner at the Manchester office and national head of family law at Irwin Mitchell.

The poll found that the most common reason clients give for not seeking mental health advice is the fear that it will negatively influence the outcome of their case. Also, they may follow advice to see a GP and be prescribed antidepressants but often don’t take them, or won’t disclose to their doctor any onset of depression or anxiety, again for fear of how it might reflect on the divorce outcome and being judged, especially where children are involved.

For Bever and her team, it can feel as though clients are fighting the stigma of mental health and poor legislation.

“The fact so many clients demonstrate signs of depression or anxiety and so early on during the litigation tells us urgent change is needed in the way the law works for people involved in divorce,” Bever said.

It is why many solicitors welcomed the Queen’s speech last week when ‘no fault’ divorce was put back on the agenda.

“Family lawyers have been calling for this reform for many years, so it is good news that parliament will be returning to it,” said Alexandra Hirst, associate in the family team at private wealth law firm .

Bever agrees that new legislation would “assist parties enormously” because it doesn’t have to be fault based. “The reality is, whether you like it or not, if your partner wants out of the relationship you can’t make them change their mind.”

Lawyers are often the first port of call for clients when relationships break down but they are also the first to admit that they are not equipped to deal with the mental health aspects.


Once clients come in and it is clear that they are emotionally distressed they are referred to outside professionals.

“We signpost our clients to the relevant services where possible including GPs, therapists and counsellors and are providing more mental health training for all our staff to help them better support clients as well as themselves.”

“We ask them, ‘Have you thought about accessing outside help to cope? Would you like me to give you a list of counsellors? Would it be helpful to see your GP?' We might then get feedback from the client but you still have the confidentiality issues because their relationship with their therapist is usually a private one."

In terms of staff training on mental health, Bever said a professional support lawyer in house sets up two training days a year for the entire national team. Last year, the group trained with an external body called the Flip Faculty, which stands for Family Law In Partnership. That was very helpful, she said.

The partnership provides practitioners and solicitors with supervision to help them with the emotional challenges, and suggests coping strategies for how solicitors might deal with different client situations. Bever said that two of her team are about to take the training which is then rolled out to the rest of the firm. The practice also holds monthly breakfast meetings where different divisons get together to talk about wellbeing.

Resolution (formerly the Solicitors Family Law Association) is another resource that many family divisions use for support. It is roughly 6,500 UK family justice professional members who are encouraged to follow guidelines that use constructive, non-confrontational approaches to family law issues, including how to mitigate in divorce. Training Bever received in May, she said, has helped her neutralise situations where clients have come in consumed by their partner's supposed shortcomings.

Bever adds that she has faced situations, as many of her colleagues have, where a client has come in threatening suicide. “It is an horrendous situation because you are caught between your client confidentiality and what is morally right." The Solicitors Regulatory Authority, the industry watchdog, "does now specify that you can make a disclosure to help the individual, but I’ve always thought it is a grey area,” she said.

“Even though it shouldn't be the case, there is a stigma associated with mental health. There is this fear that when clients are in a battle with somebody, anything might be used against them.”