By Stefania Mariani and Arielle Masur
Access to justice is a persisting problem in the legal community. As law students and mediators at the Osgoode Mediation Clinic, we know that alternative dispute resolution, namely mediation, is one way in which we can facilitate entry to the justice system. However, the access to justice crisis has various layers and part of this ongoing problem is ensuring that everyone receives sufficient resolutions through mediation.[1] A truly sufficient and successful resolution is only achieved when the parties feel that their concerns have been acknowledged, understood and addressed by the mediators.
We recently had the honour of delivering a workshop entitled “Conflict Resolution in the Workplace” to the North York Women Centre (the “NYWC”) as part of their new “STEPS to Work Program”. The NYWC is a community of diverse women working together to advance equality and empower women to effect positive change. The STEPS to Work Program was developed to support women across Toronto who are either re-entering the workforce or entering the workforce for the first time. Therefore, we focused our workshop on both understanding gender-specific conflict in the workplace, as well as on conflict resolution skills and tips. But we also explained the impact conflict can have on one’s mental health and introduced ways in which the participants can practice self-care. Although this discussion was intended to be relatively brief, this topic resonated with the participants the most. One of the participants specifically emphasized the importance of a support system while resolving conflict. During our debrief, we asked ourselves how mediation can provide this support.
Initially, we reflected upon how the mediators can amend the mediation process to accommodate individuals with specific needs. For instance, mediators are encouraged to begin the mediation by outlining the process. They explain what the parties will be required to do and the functional environments they will be in - allowing the parties to raise any immediate concerns as soon as possible. Mediators are also encouraged to ask the parties if they require a support person who is able to address the anxiety-provoking and stressful nature of the conflict resolution process. These accommodations enable the parties to feel more comfortable throughout the mediation, making the entire process a profoundly accessible form of ADR. However, we acknowledged that stress and other mental health issues are not always visible. So, unless an individual raises their concerns, these accommodations may not always be implemented. This led us to consider an accommodation that all mediators can employ, even when it is not explicitly requested: trauma-informed mediation (“TIM”).
TIM encourages mediators to consider the cognitive aspects behind the process of mediation. Dawn Kuhlman, a TIM specialist, describes how traumatized clients may operate out of their amygdala; the part of the brain that activates the fight, flight or freeze response.[2] These clients may be very reactive to their environment and may also find it difficult to regulate their emotions. The body’s reliance on the amygdala to address problems would hinder someone from successfully participating in the mediation process which requires significant use of the prefrontal cortex to problem solve, brainstorm and see things from others’ perspectives.[3]
Seeing the mediation process through a trauma-informed lens can help mediators to better understand and help their clients. Recent studies have shown that when mediators take time to understand their client’s lived experience, the mediation is more likely to be successful for that individual. In a 2021 article titled The Reconstruction of Mediation: A Shift Toward Cultural Competency and Social Sophistication, author Wynne Reece argues that more education surrounding differences in culture, individuality, and social background is necessary for parties to have confidence in their mediators, which can lead to a higher rate of success in the mediation process.[4] Furthermore, Reece explains that a client’s trust in their mediator is essential to making the process work. If a client feels unheard or judged by the mediator, or if they feel like the mediator has not made efforts to understand and respect their lived experience, the client will not receive the support they are seeking. In turn, it is unlikely that the client will leave the mediation with a truly successful resolution.[5]
Knowing this, we can see how TIM could eliminate access to justice barriers for those who suffer from mental health issues or have experienced trauma. While practicing TIM, the mediator can empower clients by helping them regulate their emotions, assist in building their interpersonal and problem-solving skills, and point them towards other helpful resources. In doing so, the mediator will support the client by supplementing the areas of the mediation process that are currently hindered by their stress and trauma. Therefore, a mediator implementing TIM will provide the support required to establish trust in both the mediator and the mediation process.
Overall, we believe that being trauma-informed is a critical skill that should be implemented by all mediators. However, when we were researching this topic, we found that the literature and resources on TIM were scarce. There have been few papers written on TIM and the ADR Institute of Ontario has hosted a few workshops that focus on TIM. While we understand that TIM is relatively new to this field, we also believe that more research on the topic should be made available. TIM should be seen as a core competency for all mediators, as opposed to an additional or “soft” skill.
In conclusion, we believe that the implementation of TIM by all mediators would significantly eliminate barriers to justice. To narrow the justice gap, ADR must both be accessible to the community and a sufficient method of dispute resolution for all of its members. Every individual brings a unique situation to the mediation table, and despite our best efforts, we cannot always perceive when support is required. That is why TIM is so important. With TIM, mediators will not only ensure that all the elements required for a successful resolution are met, but TIM also ensures that every individual will be heard, respected, understood and supported throughout the entire process.
[1] Sukhsimranjit Singh (2020) “Access to Justice and Dispute Resolution Across Cultures” Fordham Law Review: Vol. 88: Iss. 6, Article 12.
[2] Dawn Kuhlman (November, 2018) Trauma Informed Mediation, TEDxOverlandPark https://www.marchmediation.org/traumainformedmediation.html.
[3] Ibid.
[4] Wynne Reece (2021) "The Reconstruction of Mediation: A Shift Toward Cultural Competency and Social Sophistication," Mitchell Hamline Law Review: Vol. 47 : Iss. 2 , Article 12 at 785.
[5] Ibid at 792.