Does this time of year bring you more headaches, sleepless nights, agitation. difficulty relaxing?
If it does, you’re not alone. For those of us involved in litigation, particularly claims involving exposure to traumatic and confronting events, vicarious trauma is an occupational hazard – particularly at the time of year when the caseload is high and mediations fill the calendar.
Vicarious trauma has been defined as ‘the negative transformation in the helper that results (across time) from empathic engagement with trauma survivors and their traumatic material, combined with a commitment or responsibility to help them’ (Pearlman and Caringi, 2009, 202-203).
For lawyers, the repeated exposure often occurs through taking instructions from clients, seeing photos of injuries, reading expert reports about the traumatic event and its aftermath. In reality, the more you are exposed to the traumatic event, the greater the risk of experiencing vicarious trauma.
This week the Victorian Court of Appeal handed down its judgment in the matter of State of Victoria v Kozarov, in which the liability of the Office of the Public Prosecutions for psychiatric injuries suffered by one of its solicitors was considered. Ms Kozarov was a solicitor working in the Specialist Sexual Offences Unit, which involved continual exposure to a large number of sexual offences, including child sexual assault.Whilst the Court ultimately found in favour of the State, it did not disturb the primary decision in relation breach. It is a case worth reading for a lot of reasons but a few key comments by the Bench are noteworthy; in particular:
“It is self-evident that cases involving sexual offending, of themselves, invariably involve a degree of stress to a legal practitioner. In the period in question, the case load on the plaintiff, and her colleagues, was increasing significantly. At the same time, the content of the work became more confronting, particularly as the proportion of child sex offences handled by the plaintiff increased quite substantially. The work required the plaintiff to comply with a number of tight time limits that were prescribed by statute and by judicial direction. In those circumstances, there was little opportunity for the plaintiff to gain relief from the stresses of her work by stepping back and separating herself from it.” …..
“When viewed in isolation, each of the matters relied on by the judge might not individually constitute relevant notice to the defendant that the plaintiff was at risk of suffering psychiatric injury as a result of the nature of her work. However, the correct approach, which was taken by the judge, was to analyse and consider all of those matters in combination, rather than in a piecemeal manner.”
This case should serve as a warning that a Court will be prepared to find that, in certain circumstances, an employer’s duty of care to an employee may extend to taking reasonable steps to avoid a particular employee developing a psychiatric injury.
Judicial findings aside, from my chair at the head of the table I have observed three ways in which vicarious trauma is potentially impacting on lawyers.
Blurring of professional boundaries
As a mediator I have the immense privilege of working closely with the legal representatives from “both sides”. I see first hand how challenging it can be for a lawyer who has worked closely with someone who has suffered a trauma; either as the “victim/survivor” or someone who has had allegations made against them. I have no doubt that the lawyers are compassionate and striving to get the best outcome for their clients. However, while doing this, it is very important for lawyers to have professional boundaries in place and remember that their role is not to be their client’s counsellor. Providing arms length legal advice, includes advising on the strengths and weaknesses of a client’s case and what resolving a case could mean for a client on a wholistic level.
Unfortunately, I have seen incredibly skilled lawyers who have become so emotionally invested in their client’s case that the lawyer gets wedded to the positional stance adopted by a client.
Ways to check whether your professional boundaries are in danger of becoming blurred could include being mindful of the physiological impact working on the claim is having; do you have angry outbursts whenever you receive correspondence from the other side, do you lie awake at night worrying about speaking to your client, is your correspondence to the other side becoming more inflammatory than usual? If so, perhaps it’s worth getting a colleague to work on the case with you to check that an independent perspective is being maintained.
While I am obviously not privy to the legal advice given by a lawyer to their client in a mediation, it’s worth keeping in mind whether there is a risk that your own vicarious trauma could impact upon your ability to best represent your client.
The slide from compassion fatigue to vicarious trauma
As the Court in Kozarov noted, it is often the combination of factual matters that slowly creep up on you and start negatively impacting on your mental health. At this time of year, when there are looming deadlines (ie the “christmas rush”) and a large number of cases being propelled towards settlement discussions by the Courts, it is easy to start getting fatigued. Certainly it is well recognised that for people involved in lines of work that involve continual exposure to traumatic events the cumulative impact on a person’s emotional and physical state can be profound. In some it is a defence mechanism to protect themselves, in others it is a weariness (or in some a cynicism) developing from a high and unrelenting workload.
Compassion fatigue can exhibit itself in many ways, including exhaustion, irritability, a sense of disillusionment with the world or your purpose in it. While you may not develop a recognisable psychiatric illness (but it is possible to suffer both compassion fatigue and vicarious trauma), you should nevertheless take immediate steps if you see those symptoms in yourself or your colleagues.
Certainly at this time of the year I have had several conversations with lawyers who have made comments that are a little out of character for them or shown higher levels of irritability than they would usually show. Unfortunately that has, in some instances, lead those lawyers, who would usually be very measured in their communications, to adopt more toxic language in mediations. While that can be reframed, and has not derailed any settlement discussions to date, the potential was there.
So at this time of year it is even more important to have in place good self care habits to give yourself the ability to refuel and recharge. How you do that will be unique to you – however making time for exercise, good nutrition, getting outdoors, journaling and connecting with family and/or friends is a good starting place for some.
To my fellow mediators
As mediators we hold very tightly to our role as an independent and neutral third party. We are all aware of the debate between neutrality and impartiality, however, it is virtually impossible not to be impacted by some of the information mediators are privy to and some of the emotions that we have to help parties manage throughout the course of a mediation. Combine that with our strict confidentiality obligations and there are few opportunities to debrief.
In addition, at this time of year, with full end of year calendars and few days off between mediations, the risk of compassion fatigue, burnout and vicarious trauma is real. Whilst our contact with the parties is much less than a lawyer, we often see parties in their highest state of anxiety and read about, and view, multiple different traumatic events and documents all in the space of a few days.
For those of us mediating in claims involving high levels of trauma or conflict, for example historical abuse, personal injury, family provision claims or family law matters, it is our soft skills; the empathy, patience, calmness, ability to reframe legal arguments in a way that assist people to see things from a different perspective, that is highly sought. If as mediators we start developing symptoms of compassion fatigue, burnout or vicarious trauma then our ability to harness those skills may be compromised.
Ways to avoid those risks include being educated about the risks, having solid professional boundaries in place, debriefing and taking steps to ensure that your self care is prioritised. As a general rule of thumb, when I have 3 potentially highly emotional mediations booked in the same week I will block out the balance of the week, or only take matters involving less traumatic circumstances. However, everyone’s protective mechanisms will be different – it is not a sign of weakness to practice self care, it is an important strategy to ensure that our professional skills are at their peak.
You can read more about vicarious trauma and compassion fatigue, and supervision services it provides to professionals working in the persons who have suffered trauma on the Blue Knot Foundation website.