Recently I’ve read two impactful books, Oliver Burkeman’s Four Thousand Weeks, and Atul Gawande’sBeing Mortal. I’m not sure if their profundity has struck me more deeply in the light of the pandemic and its impact on my perspective of time, my age and my perspective on time, or the launch of the Consilium institute and its having brought into stark relief my desire to use my time wisely. No matter the underlying cause, this blogpost is the result.
In Four Thousand Weeks, Oliver Burkeman talks about the book as being an anti-time management resource. By that, he means to make readers examine how we spend every hour of every day: this helps us to distill the grander picture of how we choose to use our limited time on earth. By titling the book Four Thousand Weeks, a rough estimation of 80 years, Burkeman highlights the relative brevity of life as we know it, which for me shines light on Mary Oliver’s poetic question “Tell me, what is it you plan to do with your one wild and precious life?“
Many of Gawande’s thoughts and observations in Being Mortal resonate with me, and with our goals at the Consilium Institute. From his re-thinking about end-of-life care and the development of nursing homes and their oft’ failed attempts to provide for the elderly, to individual decisions regarding end-of-life decisions, Gawande pushes us to consider how and why our current systems came into being. In part, he attributes systemic failures to creators not consulting the constituency they wanted to serve. In the United States, nursing homes were designed by default: they were developed after WWII, when hospital building grants arose and poorhouses sent residents there for care. Subsequently, hospitals wanted to clear their wards of elderly patients whose long-term, chronic needs they weren’t designed to serve and so an outgrowth of nursing homes was created to house those patients.
That failure of inquiry is true in family courts as well. Much like the elderly, children and families aren’t consulted about the legal process, since lawyers often see their clients as needing care but not having informed ideas. It seems to me that goals which are often seen as competing may not be mutually exclusive, and that by working in concert we might achieve more satisfying outcomes both for society and for the people most immediately impacted.
Gawande deepens his analysis by talking not only about systemic failures but also by reflecting on doctor-patient relationships, and how doctors are more likely to see themselves as “healers of the sick” than helpers of people who want to live their best lives, especially when faced with living a shorter time than they had hoped. He posits that when doctors are not confronting the inevitability of death, they miss opportunities to help the living live well. In an effort to alter this paradigm, he suggests that we ask patients confronting death about what tradeoffs they are willing to make.
Unlike death, divorce is not the end of life, but it is the end of the life of a marriage. However, it is also a new beginning, a restructuring and an opportunity for growth. As such, I think there are similarities and differences in the experiences of doctors and their patients, to family law lawyers and their clients. In both death and divorce, what tradeoffs one is willing to make is an appropriate question. The Consilium Process helps lawyers help clients to make this transition in thoughtful and considered ways.
When Gawande’s own father, himself a surgeon, was diagnosed with an aggressive cancer, he and Atul talked to two different doctors about possible treatment paths. Their advice differed, but the delivery of their recommendations was more pronounced than the details of their proposed treatment plans. Those conversations led Atul to revisit three documented styles of medical care he had studied during medical school: paternalistic, informative, and interpretive.
Paternalistic care aims to ensure that patients receive what doctors believe they should receive (e.g., you should take the green pill). Informative care details the facts and figures, with the instruction that the rest is up to you (“Here’s what the green pill does and here’s what yellow pill does. Which one do you want?”). Interpretive care is the nexus where information and control meet guidance (it’s where doctors ask, “What is most important to you? What are your worries?”). If you consider these three approaches to elder care in comparison with family law disputation, you can see why the analogy seems like an apt one.
If doctors know what you prefer, they will tell you about the green pill and the yellow pill and which one they believe will most help you achieve your priorities. Interpretive doctors challenge patients to rethink ill-considered priorities and beliefs and help them think through not only first-order desires (immediate goals) but also second-order desires (desires about desires — remaining more faithful to larger goals (resisting desert for an overall healthier lifestyle).
It seems to me that Gawande’s consideration of those styles is revealing for lawyers as well.
Like physicians, lawyers often have either paternalistic or informative styles. Just as becoming an interpretive physician takes more skill than medical knowledge alone, becoming a Consilium-trained lawyer requires the development of skills beyond just knowledge of the law. “Ask, tell, ask” is a method used in palliative care and one which lawyers could, but seldom do use.
Consilium lawyers will learn to make a practice of asking clients what it is they want to know, telling clients what it is they should know, answering any questions they have, and then confirming what they’re taking away from your explanations. Although in and of itself not a difficult task for a highly skilled lawyer, this important form of communication is often overlooked, especially in paternalistic and informative practice models. But that sharing of information could help so much, if lawyers took the emotional well-being of their clients as seriously as matters of financial/property disputes. When applied by a Consilium-trained lawyer alongside other complementary tools and skills, our approach will help them work with a client to create a roadmap with meaning. Layering this guidance with an understanding of a client’s fears and goals helps clients to build healthier selves as well as restructured families imprinted with their own unique design.
It seems to me that it is incumbent upon family lawyers to say to clients “Tell me, what is it you want to do with your one wild and precious life?”, and then ask “How can I help you achieve those goals?”