Trauma-informed lawyering at mediation

Mediation provides parties to a dispute the opportunity to meet and, with the help of a mediator, resolve their differences. While mediation can avoid giving evidence in Court, coming face to face with the opposing side can be a traumatising process, especially for survivors of child sexual abuse or domestic violence. This article considers how lawyers can engage in trauma-informed lawyering when representing the opposite side at mediation.

What is trauma-informed practice?

Trauma is a deeply personal experience. Hearing strangers at a mediation discuss that experience can be re-traumatising. A trauma-informed approach limits potential for re-traumatisation by creating a safe and trustworthy environment for a person suffering from trauma and, where possible, avoiding potential triggers to that trauma.

Communicate clearly and honestly

In the words of American academic, Brené Brown, “Clear Is Kind. Unclear Is Unkind.”

Mediation provides a unique opportunity for the parties to discuss the dispute openly and honestly without impacting their case. But how can you speak openly and honestly without re-traumatisation? It can be tricky.

• Where appropriate, tell the person you believe them. Often a significant contributor to a person’s trauma is not being heard or believed. Telling them you believe them can establish trust and lead to more open and productive discussions.
• Acknowledge the person’s feelings and express regret. You can acknowledge, and express regret for, the hurt someone is feeling without admitting responsibility. Paraphrasing what a person has shared and making sure to not minimise the impact of the trauma, are great ways to demonstrate acknowledgment of that person’s hurt. In some cases, a formal apology can be a powerful tool which can give a person a certain closure which typical damages cannot.
• Focus on the legal issues rather than the person. Try not to discredit the person and credit them where you can. Avoid playing the blame game and avoid questions pertaining to the person’s response to the trauma, such as why they did not raise what had happened to them earlier.

Avoid surprises

Trauma can have many implications on a person’s life, including the way new information is processed. Seeing or hearing something for the first time at a mediation can be triggering. Where possible, avoid introducing new material at the last minute. State your client’s position in writing or consider making an offer ahead of the mediation.

Be flexible

There is no one size fits all approach for representing your client’s interests at a mediation in a trauma-informed way. Being able to adapt to a range of emotional responses is important. If a trauma response is encountered, hold space for the person. Stay present and pay attention to what is happening. You may need to change your approach, but make sure you move at the person’s pace. After all, it is the person’s mediation, and their best interests should be the paramount consideration.

Keep your emotions in check

As lawyers representing our client’s interests at a mediation, we are expected to check our emotions at the door. This can be hard when participating in a mediation where the parties’ emotions are high. Becoming emotional yourself can heighten the situation. Where possible, try to recognise your emotions. If you feel your emotions heightening, take a moment to pause, take a deep breath, and step away if you have to.

Avoid burnout

Mediating traumatic disputes can be emotionally draining. In time, this can lead to emotional burnout impacting your ability to mediate in a trauma-informed way. After each mediation, take time to debrief and seek support if you need. Taking care of your own physical and mental wellbeing is the most effective way to ensure you can continue to mediate in a trauma-informed way.

Trauma-informed lawyering at mediation is a challenging but worthwhile skill and one which is learned through practice and experience. Taking a trauma-informed approach to mediations by adopting some of the considerations outlined above can lead to a more satisfactory outcome for all parties while also protecting yourself from your own emotional burnout.