Trauma Informed mediations and what psychological SAFETY looks like – hint, collaborating not “winning”.
As foreshadowed in my previous post, I have noticed a trend in recent years of legal practitioners and clients vocal about the necessity of being “Trauma Informed” particularly in relation to institutional abuse cases. This represents a paradigm shift towards a human centric system, which is a great thing. Unfortunately a gap often persists between understanding THAT it is important and understanding WHAT it requires of us in practice.
Today’s thought bubble relates to the principle of SAFETY in mediations, in particular, psychological safety.
All human beings are naturally designed to want to avoid ambiguity because at our core we crave security. Intolerance to uncertainty is amplified for people who have experienced trauma and who present with hypervigilance.
Hypervigilance can be described as a state of increased awareness or “threat detection” and it makes people exquisitely sensitive to [largely negative] stimuli that others may not even be aware of (smells, sounds, micro aggressions, tone of voice, perceived criticisms etc) resulting in an inability to access the part of the brain that allows us make good decisions.
So HOW do we avoid this? We do EVERYTHING possible to reduce surprises and increase predictability – and we do it with kindness and respect (note that I didn’t say that we need to agree or concede to be trauma informed).
A few examples of what this can look like in practice:
- identifying attendees prior to mediation;
- Plaintiff representatives: notifying the other party if your client is likely to deliver a victim impact statement (so that the correct people are in attendance and are emotionally prepared to listen and receive);
- flagging what further information your client would need to change their views at or before the mediation (as compared to “keeping your powder dry”). More on this in my next post when we look at TRUST;
- speaking with your opposing counsel well in advance of mediation to narrow the real issues in dispute and (better still) indicate a range within which your client is likely to negotiate a settlement. This is particularly critical for Defendant representatives if a client is likely to make a “walk away bear own costs” offer. I note that this is a departure from “usual practice” for many litigation practitioners but I cannot overstate how much better this news is received prior to mediation than as a surprise AT the mediation.
- If an acknowledgment of harm or an apology can be made, make it before you say anything else in joint session;
- Ask rather than assume how to make a person feel more comfortable (both physically and emotionally). This also applies to being flexible with how the process and negotiations proceed.
What it doesn’t look like: threats and intimidation, ambushing, cross examination, stonewalling, raised voices
What have you seen that increased SAFETY?
