We are hearing more and more in the practice of law about the impact of “trauma,” and particularly the ways that traumatic experiences impact the brain and body. There’s even a growing movement to help lawyers practice in a way that is more “trauma-informed.” The ABA just published a fantastic book entitled “Trauma-Informed Law: A Primer for Practicing Lawyers and a Pathway for Resilience and Healing,” by my friend Myrna McCallum and three other astute practitioners.
But what does it mean to be trauma-informed? And most importantly for present purposes, how can trauma-informed principles be helpful in the context of a mediated settlement conference?
My interest in this topic, particularly as it relates to mediation, dates to the first time I served as a mediator in a will caveat case, over a decade ago. The plaintiff had filed a caveat to her late father’s will, which had essentially excluded her and left his house to his two granddaughters, the plaintiff’s nieces. Her caveat, filed just before the statute of limitations had expired, pled claims for lack of capacity and undue influence. The granddaughters contended that they had been close with their grandfather and were the only relatives who had cared for him in the waning days of his life. In the first private caucus session, when I asked the plaintiff why she thought her caveat claim would be more compelling to a jury than the granddaughters’ defenses, she told me, “Well, I know I am going to win, and I should win, because one night not long after he died, Daddy came to me in a vision and told me that I was his favorite daughter and I was supposed to have his house.”
I realized then that there was more going on with this case than a straightforward rational application of law to the facts. The plaintiff’s ability to participate in a settlement discussion, despite her erstwhile lawyer’s best efforts, was affected by how she was (or perhaps was not) processing her grief. Not only had she lost her father, whom she loved dearly, but she was also still grappling with the painful choice that he had made regarding the disposition of his estate. No amount of explaining the inadmissibility of a decedent’s testimony from the hereafter was going to persuade her to let go of her claims.
Since that time, I have had numerous opportunities to learn about the effects of trauma on a person’s well-being and decision-making processes. I have always been fascinated with how insights from the counseling/psychology realm can be helpful in dispute resolution. And over the last five years, I have received a good deal of advanced training on trauma-informed mediation so that I can better serve my own clients, as well as the parties and counsel for whom I mediate. With that background in mind, I will share some observations and suggest some best practices for how lawyers and mediators can be more trauma-informed and use that knowledge to provide better service to our clients.
Being trauma-informed first involves understanding what we mean by the word “trauma.” The English word trauma is derived from the Greek word for “wound.” A trauma is essentially an event or series of events that one experiences as harmful, painful, or emotionally disturbing. Natural disasters, motor vehicle accidents, incidents of physical or sexual abuse, major health crises, and the like are typically characterized as traumatic without much controversy.
Through the relatively recent work of several notable medical experts such as Dr. Gabor Mate and Dr. Bessel van der Kolk, we now understand that that other less obviously catastrophic occurrences can also be experienced as “traumatic.” Used in this broader sense, trauma describes the body’s response to anything that is disruptive to our lives or well-being. Or as Gabor Mate puts it, “Trauma is not what happens to you. Trauma is what happens inside you as a result of what happened to you.”
The term “traumatic response” describes how the human body is affected by all kinds of disruptive stimuli. Essentially, the more primitive part of our nervous system (sometimes referred to as the “lizard brain”) activates whenever the body senses that we are under some kind of threat to our safety or well-being. At this point, the frontal cortex (the part of the brain that controls executive functioning and rational thought) essentially goes offline. The part of the brain responsible for processing emotions, known as the amygdala, activates, and the “fight, flight, freeze, or fawn” instincts of the more primitive system of the brain take over.
The two most important things to understand are that: (1) even stimuli or external circumstances that are less obviously traumatic than others may trigger essentially identical responses; and (2) the primitive trauma response has no sense of time or history, and thus can be triggered by both actual events and later circumstances that invoke a similar feeling or response. For the trauma victim, when the trauma response is activated, it is as if the past suffering is present NOW, and the body is on high alert to avoid further harm.
Read the complete article here.
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