Trauma-informed Care in Mediation – Part 2

 Laura A. Athens –

Part 1 of this article, which appeared in the May issue of the ADR Spotlight, described the types of trauma, the prevalence and impact of trauma, and provided an overview of trauma-informed care. 

Part 2 of this article focuses on utilizing a trauma-informed approach to facilitate healing and resilience and to promote collaboration, empowerment, and choice in mediation.

Promoting Healing and Resilience through Trauma-informed Care

The core principles of trauma-informed care include, safety, trustworthiness and transparency, collaboration and mutuality, empowerment and choice, and cultural awareness and responsiveness. [1]  These principles are remarkably consistent with the basic tenets of mediation.

Dr. Bruce Perry refers to a “sequence of engagement” necessary to communicate effectively with someone who has experienced trauma. To engage the prefrontal cortex, the rational portion of the brain, you need to ensure the individual is regulated, feels safe, and trusts you before trying to reason with them. [2]

1. Safety

Safety encompasses physical and psychological safety. Physical safety assures that the individual feels safe from physical harm.  Psychological safety comprises freedom from shame and humiliation and freedom to express views without fear of retribution.

The mediator must continuously monitor the participants’ comfort level and sense of security.  Time and space must be provided for calming and self-care.  During online mediation, there should be built-in breaks for participants to have an opportunity to recharge or consult with their attorneys.  A safe and welcoming environment should be created for in-person mediations.  Common areas, entrances, and exits should be well lit; the reception area should be comfortable and inviting; noise levels in the surrounding area should be kept low; sufficient notice and preparation for any necessary changes in schedule should be provided. Care should be exercised in deciding when each participant will leave the mediation room. ^[3]

The mediator should ensure that mediation is a safe forum and assure participants that they are not responsible for events that were beyond their control.  The mediator must be patient, respect the parties’ dignity, and reassure them that they do not need to feel ashamed, guilty or embarrassed about their feelings or thoughts.

Response to trauma can be viewed as a continuum from being overwhelmed to overcoming.  The mediator’s job is to do everything possible to facilitate resilience, healing, and movement toward overcoming the trauma.

Some trauma survivors experience post-traumatic growth by deriving new meaning and purpose from the traumatic event.  Triumphant survivors can attest to the growth and wisdom that can result from surmounting the deleterious impact of a traumatic experience.  They often have a heightened sense of strength and a belief that they have the internal resources to overcome future life challenges.

2. Trustworthiness and Transparency

Building and maintaining trust is especially important when working with individuals who have experienced trauma and who may live in a state of fear and mistrust.  Initially, the mediator can establish trust by clearly explaining the mediation process and describing what to expect during the mediation session.

A sense of trust can be further enhanced by being honest, transparent, and consistent.  According to professor and author Brené Brown, building trust comprises several elements including, being nonjudgmental; reliable and accountable; respecting boundaries; maintaining confidentiality; and assuming good intentions.[4]  Skillful and experienced mediators often demonstrate these characteristics.

3. Collaboration and Mutuality

Collaboration can be promoted by encouraging participants to take an active role in problem solving, generating options, and selecting solutions to resolve the dispute.  There must be a shift from the sentiment that attorneys and the mediator “know best” to a collaborative approach that conveys the viewpoint that “together, we can find solutions.” The mediator must conscientiously address power imbalances to level the sphere of influence, ensure meaningful sharing of relevant information, and enhance mutual, informed decision-making.

4. Empowerment and Choice

Mediators can cultivate empowerment by allowing each participant to tell their story and share their own truth.  The focus should be on the individuals’ strengths, autonomy, choices, control and self-determination.  Skills frequently used in mediation, including active listening, empathy, gentle probing, affirmation, and validation, are useful in encouraging empowerment.  Giving participants an opportunity to explain their perspective, acknowledging their strengths in coping with the trauma, and respecting their ideas and contributions will promote empowerment and provide them with a sense of hope.

Empowerment also involves honoring the dignity of all participants.  Donna Hicks, author and conflict resolution researcher, believes that human dignity is “the glue that holds all of our relationships together” and “the mutual recognition of the desire to be seen, heard, listened to, and treated fairly; to be recognized, understood, and to feel safe in the world.” According to Professor Hicks, respect is not the same as dignity.  Respect must be earned, whereas we are born with dignity, which is our inherent value and worth.  Recognizing and valuing the worth of another person enhances their sense of well-being. [5]

5. Cultural Awareness and Responsiveness

Being aware and respectful of cultural and gender differences is key to ensuring meaningful participation.  Participants in mediation come from diverse racial, cultural and social groups.  The mediator must understand that participants react to trauma differently, and must respond compassionately to these differences and encourage others to do the same.

Assumptions about a participant’s cultural or gender identity should be avoided. Mediators must help the participants move past any cultural, racial, or gender stereotypes and explicit and implicit biases. Mediators must strive to provide culturally responsive services and ensure that the services are accessible and equitable by developing an understanding of how culture, gender, and personal characteristics of the participants influence their behaviors, attitudes, and beliefs toward resolution.   For example, cultural and ethnic factors and disability related characteristics may influence the appropriate physical distance to maintain, the pace of language, and tone and volume of voice to employ.  As a threshold matter, everyone needs to feel physically and psychologically safe to engage in the process.

Trauma survivors may become heavily invested in assigning blame or finding out who was at fault.  This type of response is at odds with the collaborative and problem-solving nature of mediation.  A participant may engage in blaming to make sense of the trauma or to reestablish a sense of predictability and control.  It is important for the mediator to be supportive and remain nonjudgmental about the way that an individual copes with trauma and to understand that everyone heals at their own pace and in their own way.

Reducing the Risk of Retraumatization

Retraumatization involves “reexperiencing traumatic stress as a result of a current situation that mirrors or replicates in some way the prior traumatic experiences.” [6] An individual may reexperience trauma through flashbacks, intrusive thoughts and images, or nightmares.

It is important for mediation participants to be aware of potential triggers.    A trigger is any sensory reminder of the traumatic event.  The trigger or stimulus may be a noise, smell, person, place, or news media story that stimulates a memory of the traumatic experience. Hyperarousal can produce overreactions to situations that resemble the previous trauma, and may be perceived as dangerous when, in fact, the circumstances are safe. Triggers can generalize to any circumstance that resembles a previous trauma, such being alone, having children who reach the same age as when the individual experienced the trauma, or seeing someone who resembles a perpetrator of the trauma.  Triggers may also be associated with the time of day, season, holiday, or anniversary of the event.

The mediator must anticipate potential triggers, be attuned to signs of distress, and exercise caution to prevent inadvertent retraumatization.  Safeguards can be employed to reduce the risk of the mediation environment mirroring, in some way, the prior traumatic experience.  Agreeing on and implementing ground rules and social norms for respectful conduct in mediation can be helpful.  Using a trauma-informed approach can lead to a better understanding of how trauma has shaped an individual’s life, how it continues to impact them, and how to determine the best path for healing and avoiding retraumatization.  Awareness that an overly authoritative or confrontational approach, challenging or discounting reports of traumatic events, or allowing any abusive behavior without strong and swift intervention may result in retraumatization.

It can be helpful to educate participants about their bodies’ natural fight, flight, or freeze response.  The mediator may notice that an individual is in a hyper-aroused state, appearing agitated, anxious, tense, impulsive; or hypo-aroused; or in a hypo-aroused state appearing lethargic, disconnected, numb or withdrawn.  If an individual is triggered and becomes dysregulated, the mediator should attempt to guide the individual back to a calm, grounded, and engaged state.  One grounding technique would be to encourage the individual to be mindful and focus on what is happening in the here and now.  This will help them distinguish between what is happening now versus what happened in the past.  Other calming strategies include encouraging the individual to take deep, slow breaths; close their eyes and count backwards; write down their concerns to clear their mind and gain perspective; take a walk or get something to eat or drink.

Self-reflection and Self-care

Promoting the healing of others often begins with self-reflection. Exploring our own histories and healing ourselves enhances our ability to help others heal.  To be fully present and understand what happened to others, we need to understand and work through our own trauma.  To minimize compassion fatigue or secondary traumatic stress and to remain effective, it is necessary to engage in self-care before, during, and after mediation through relaxation, reflection, meditation, yoga, time alone, and socialization with friends and family. ^[7]

Conclusion

It is crucial for everyone involved in mediation to be cognizant of the prevalence of trauma and realize that a traumatic history may have a significant impact on a participant’s functioning and engagement in mediation.  Mediators should recognize the signs of trauma to ensure the physical and psychological safety of participants and become familiar with trauma-informed practices to help participants fully and meaningfully engage in the mediation process.  Many of the principles underlying a trauma-informed approach, including trust building, collaboration, empowerment and choice, cultural awareness and responsiveness are frequently employed in mediation.

[1] SAMSHA Trauma-Informed Care, p. 11, described an additional core principle of peer support from other trauma survivors who can foster hope and healing.  This principle typically does not arise in mediation unless it is in the context of peer mediation.

[2] What Happened to You, p. 142.

[3] ISSUE BRIEF: Key Ingredients for Successful Trauma-Informed Care Implementation, by Christopher Menschner and Alexandra Maul, Center for Health Care Strategies (April 2016).

[4] Brown, Brené, Braving the Wilderness: The Quest for True Belonging and the Courage to Stand Alone (2019).

[5] Hicks, Donna, Leading with Dignity: How to Create a Culture That Brings Out the Best in People (2019).

[6] SAMSHA Trauma-informed Care 2014, p. xviii

[7] See Tips for Healthcare Professionals:  Coping with Stress and Compassion Fatigue (SAMSHA 2020)

Laura A. Athens is an attorney, mediator, facilitator and arbitrator in Farmington Hills, Michigan, who has over 30 years of legal experience. Laura provides alternative dispute resolution (ADR) services in a variety of matters, including elementary and secondary education, higher education, university faculty grievance, employment, vocational rehabilitation, student discipline, eldercare, guardianship and disability rights cases. Laura currently serves as an arbitrator in automotive consumer and home warranty cases and previously served as a Hearing Officer in special education and vocational rehabilitation due process hearings.

As an Adjunct Professor at Wayne State University Law School, Laura taught education law, health law and bioethics. She also taught Legal Research and Writing at Washington University School of Law as a Visiting Assistant Professor.