Last week Lucy Reed wrote a , eloquent and thought-provoking blog entitled Wellbeing Fatigue. The rant (her word) should be read in full here , but the nub of it was that she was sick of wellbeing tips. She stated

‘the problems that were frying our resilience and longevity are structural not internal to us as individuals – take away the ‘look how busy I am b***s**t’ and there is still a major problem. We’re all talk and no action because ultimately, we as individuals are almost powerless.’

Then:

‘this is a circle that can’t be squared. There aren’t enough judges or slots in the diary to list everything between 10 and 4 within a sensible timeframe. Someone’s welfare has to be compromised here; will it be the lawyers, the judges or the parents and children waiting for interminable periods for someone to make a decision that can keep them safe or enable them to move on with their life? Will it be all of them? How can a DFJ implement this guidance in good conscience if it means a delay of several months in each individual case? The circle cannot be squared.’

It was not a polemic against taking wellness measures – indeed she describes those she has adopted. It was an outpouring of frustration at her perceived powerlessness as a committed professional in the face of a broken system; ‘even those who talk genuinely and with enthusiasm about our collective wellbeing aren’t empowered to change anything anymore than we are.’ This is my response to that article which I offer not as an answer but as a deliberate debate starter, an idea, a seed of a thought.

The squaring of a circle is of course a metaphor, but it refers to a real geometric problem of how to create a square with the exact same area as a circle. It is apparently to do with integers and transcendental numbers and, no, I have no idea what those are. What I do know thanks to this article is that mathematicians have tried to square the circle in that sense for centuries.  All that teaches us is that persistence in approaching the same problem with the same range of thinking doesn’t always pay off with a solution. Sometimes you need to change the thinking.

You can very easily square a circle if you attempt to do so using not the area but the circumference. Squash it into a different shape. Or better still, snip the circle, lay the bendy line down straight and then fold it into four and connect the edges. Bingo. A square. Cheating? I’d prefer to say it is reframing the question and using different tools to resolve it.

Lucy is absolutely right that there is a cycle here. A commenter on her blog, Wendy Nicholas, who provides well-being for the NE circuit makes the point that wellbeing provisions can prevent people from burning out for long enough that they stay in the profession to take up senior positions and effect change. I imagine that in part is true in the sense that kinder working policies can be introduced by firm Directors and Heads of Chambers. Except seniority does not necessarily bring about the ability to effect the kind of change we need. And really who wants a job where you are just hanging on until you get power? And actually we already have people in power. Why are we not already getting change?

Let’s face it; we now have a President of the Family Division who genuinely cares about wellbeing and says all the right things (mostly) but has not been able to effect change. Why? Because his seniority doesn’t give him the keys to the Treasury. The system needs funding and that comes from politicians and they don’t care. They do of course care about votes. The profession could create such a stink, such a public education campaign, such a protest that they change the policy. Except we can’t because of so many reasons.  Including exhaustion. Lawyers are already over-committed to their job and their job takes everything. And they didn’t want to be political campaigners, they wanted to be a lawyer. Except now sometimes, at least in secret, they don’t because the system is broken, and the circle cannot be squared. And so we give up.

Let’s consider that alternative of cutting open the circle rather than replicating its area. We know the system is broken already but we have not yet broken the cycle of the way lawyers contribute to taping it all together. Every day I read online lawyers saying ‘We can’t go on like this’ as they continue to go on like that.  Why? Because they are committed. Which is a good thing. If you are committed to the right thing.

At the moment we have a broken system propped up by lawyers who are committed to that propping up rather than to the creation of a wholly new workable system. Committed to putting clients, especially children, first. Committed to working very, very hard for what they believe in, which is wholly admirable. But the problem is, when your nose is always to the grindstone, it’s hard to see anything but the old stones moving in the same old way. Stepping away from the commitment and taking a wider more open view we can ask: can we be both committed to this day, this case, this family who we do not want to let down or delay and at the same time be committed to the future sustainability of the profession and the system? Can we be both committed to bringing ourselves to a standstill and yet still being up and running to be able to pass the baton on to future generations in years to come? If we conclude that those things are incompatible (as I think they may well be) then which is the right one to choose – the short term now or the long-term longevity?

And that is where the wellbeing comes in, even to the extent that it looks selfish. Not so we can gain positions of seniority but so that we can gain time and clarity to think clearly and be creative. Destructively creative if that’s what it takes – most creative processes involve destruction as a precursor.  If we can’t mend this system, we either have to keep using it broken and break ourselves in the process or we have to throw it out and make a new one. 

All the new pupils posting on LinkedIn about their dreams of working to achieve justice and human rights imagine that they will do that case by case, individual client by individual client. But it might be that, with the assistance of those who already have the power and seniority right now, they are the generation whose true task is to create a new system for family law that can actually work in the world we live in now. It is they who will struggle to buy houses and fund pension schemes and will not be able to afford to pay the tax that would refund legal aid and mend the old system. Maybe those of us who have the had benefit of the old system before it was broken need to consider our role in creating the fairness that will let them work in a system that does not further cripple them with an inheritance of irredeemable decay. 

 Big questions are required about the whole structure of the system. About our fundamental assumptions of how law must be done. We need wild and wonderful ideations that undermine all we are used to.  Not necessarily because that’s where we will land but because that’s how good ideas are found, by creating as many possibilities as you can. But we can’t clear space for minds and hearts to do that when we are stressed and over worked with no time to think and listen. Bravery, collaboration and imagination take internal resources and if those resources are eternally depleted by the daily grind of life at the coal face the necessary debates and breakthroughs will not happen. 

Another comment on Lucy’s blog suggested a fundamental change in the way the Bar organises itself. A lawyer I spoke to today liked the idea of returning to a system of Legal Terms to allow everyone to stop and rest together. We already have debate about the role of remote hearings and the funding of access to technology rather than courts. Do we need a radical re-think of who holds the budgets for cases, including experts and legal representation? Do we fundamentally unpick the seemingly sacrosanct ideas we cherish such as days of oral evidence and the structure of the judiciary? Do we set up private courts to allow the meagre public budget to spread further? 

These may well be terrible ideas, but they are good questions in that they spark debate and thought and cause us to question and examine the assumptions that the brokenness of the system feeds on. In fact, a better question still may be: If we started to design a family system today in a post-Covid post-Brexit era with absolutely no knowledge of the history of the existing system, how would we build it?

Wellbeing is the point where the cycle can be broken, and a new shape created. Yes, the consequence of us taking what we truly need to thrive and be healthy, will be that balls get dropped and the ‘right-now’ tasks don’t get done. Individual cases and clients in the system today will suffer. But is it better to pay that price to gain a better future or is it better for us all to stumble on exhausted propping up a failing system forever more? That’s the debate. What’s your answer?

PS. I am aware that I use the term ‘we’ throughout this article despite having left court practice. I tried it using ‘you’ and it was not right. The ‘we’ represents the fact that I still care, that I am still connected to legal practice through the lawyers I train, coach and write for. And it represents the fact that it’s those of us who are out of the system that have the headspace and the alternatively more detached but still informed viewpoint to ask the seemingly crazy questions and the lack of work-related consequences to do so without fear.