(This article was first published in the Oakland County Legal News on May 30 and June 27, 2023.) “The paradox of trauma is that it has both the power to destroy, and the power to transform and resurrect.” Peter A. Levine, Ph.D.
Most of us have faced trauma at some point in our lives. You may have lost a loved one in a tragic accident, confronted a life-threatening illness, coped with a disability, experienced physical, psychological, or sexual abuse, or survived a natural disaster. Tragedy can strike anytime and anywhere; it does not discriminate based on race, gender, religion, age, class or culture. No one is immune.
In practice, you may have encountered a client who struggled with a traumatic event and had difficulty moving forward. Parties who engage in mediation frequently have contended with trauma in the form of a divorce, an accident, an assault, malpractice, death of a loved one, loss of employment, or other injury. Litigation itself can be a traumatic experience forcing parties to relive the pain and anguish that led to the lawsuit.
In mediation, it is crucial for all participants to recognize the signs of trauma, its prevalence, and the detrimental impact it can have on an individual’s physical, emotional, cognitive and behavioral functioning. It is also essential to learn strategies to facilitate healing and resilience.
Trauma Definition
Trauma has been defined as resulting from “an event, series of events, or set of circumstances that is experienced by an individual as physically or emotionally harmful or life threatening and that has lasting adverse effects on the individual’s functioning and mental, physical, social, emotional, or spiritual well-being.” [1]
The three key components are the event(s), experience, and effects. The event may be a single, serious, event or exposure to a series of traumatic events. The experience of the event(s) varies according to the individual; two people exposed to the same event or series of events may experience and interpret these events in vastly different ways. The effects of the trauma may be immediate, delayed or long lasting and the impact ranges from minimal to pervasive and severe.
A variety of factors may shape how the traumatic event is experienced, for example, the individual’s age or developmental stage, physical or emotional health, previous exposure to trauma, cultural beliefs, and availability of social supports.[2]
Types of Trauma
Generally, trauma is divided into two main types: natural events and human-caused trauma. Natural events, or “acts of God,” are typically unavoidable. Examples include tornadoes, hurricanes, floods, wildfires, avalanches, earthquakes, volcanic eruptions, and landslides. How individuals respond to natural disasters depends on the degree and extent of devastation, the availability of governmental and community support, and the amount of time it takes to resume daily routines, activities, and services.
Human-caused traumas are either intentional or unintentional. Intentional traumas, caused by human design or malevolence, include war, terrorism, torture, shootings, arson, robbery, assault, and domestic violence. Unintentional trauma is caused by human error. Examples include technological catastrophes, gas explosions, mine collapses, automobile, aircraft or train accidents. Depending on perspective, a pandemic may be viewed as a natural or human-caused trauma.
Human-caused traumas are fundamentally different from natural disasters and are typically more traumatic for people. Survivors of an unintentional traumatic event may feel angry and frustrated because of the neglect or lack of protection by the responsible party. After intentional acts, survivors often experience significant distress and struggle to understand the motives for the harmful act, the calculated or random nature of the act, and the psychological makeup of the perpetrator. [3]
Trauma may be experienced by an individual, e.g., a serious injury caused by an accident; a family, e.g., the terminal illness of a parent in a young family; a community, e.g., a school shooting; a nation, e.g., an act of terrorism; or worldwide, e.g., the COVID-19 pandemic. Repetitive exposure to traumas can have a cumulative effect over an individual’s lifetime. Sustained traumatic experiences tend to wear down resilience and compromise the ability to adapt.
Trauma-informed Care
Trauma-informed care is “grounded in an understanding of and responsiveness to the impact of trauma, that emphasizes physical, psychological, and emotional safety,” and provides “opportunities for survivors to rebuild a sense of control and empowerment.” [4] Trauma-informed care is an approach, whereas trauma-specific treatment is more clinical in nature.
A trauma-informed approach shifts the opening question from: “What is wrong with you?” to “What has happened to you?” Through this trauma-informed lens, an individual’s behaviors are viewed more compassionately as a response to surviving trauma, rather than symptoms of pathology.[5] Replacing the term “victim” with “survivor” emphasizes the individual’s strength and tenacity and reinforces their empowerment.
The concept of trauma-informed care has evolved over the past 35 to 40 years and has been applied in many fields, including health care, education, mental health, child welfare and in the criminal justice system. [6]
In 1988, President Ronald Reagan and Congress designated May as National Trauma Awareness Month in recognition of the need for trauma awareness.[7] Congress established the Substance Abuse and Mental Health Services Administration (SAMHSA), an agency within the U.S. Department of Health and Human Services, in 1992 to lead public health initiatives to promote mental health and prevent substance abuse. SAMSHA has prepared numerous publications regarding the impact of trauma and the use of trauma-informed care.
In February 2018, the U.S. House of Representatives unanimously approved House Resolution 443 recognizing that millions of Americans have experienced trauma that negatively impacts their mental, physical, spiritual, economic, and social well-being. The Resolution found that trauma-informed care could effectively assist individuals, children, and families to overcome trauma and lead healthy lives, and encouraged the use of trauma-informed care in federal agencies and programs.[8] In October 2018, an Interagency Task Force on trauma-informed care composed of representatives from numerous federal departments and agencies was established.
As later discussed in detail,recognizing the signs of trauma, its prevalence, and learning strategies to facilitate healing and resilience, are essential.
Overview of Concepts Underlying Trauma-Informed Care
Four key concepts underlie a trauma-informed approach: 1) recognition of the prevalence of trauma; 2) understanding the signs and impact of trauma; 3) responding by integrating trauma-informed strategies into practice; and 4) reducing the risk of retraumatization by avoiding creation of an unnecessarily stressful or triggering environment. [9]
- Recognizing the Prevalence of Trauma
In this era of mass shootings, terrorist acts, natural disasters, and the COVID-19 pandemic, trauma is widespread. According to the Centers for Disease Control and Prevention (CDC), 61% of American adults reported experiencing at least one traumatic event in their childhood. [10] Approximately 67% of children have experienced at least one adverse childhood experience (ACE); often their response to trauma is misdiagnosed or mischaracterized as “bad behavior.” [11] Fifty-four percent of families in the United States have been affected by some type of disaster.[12] An estimated 7 to 8% of the United States population will develop Posttraumatic Stress Disorder (PTSD) at some point in their lives. [13]
Given the pervasive nature and devasting impact of trauma, it is incumbent on mediators and attorneys to consider trauma in every case. In mediation, this means being keenly aware of the likelihood that parties have been exposed to trauma to such an extent that it colors their perceptions and beliefs, and therefore, influences how they engage in conflict resolution.
- Understanding the Signs and Impact of Trauma
Responses to trauma may be emotional, physical, cognitive, or behavioral. The response may be temporary, prolonged, acute or chronic, mild or severe. Distinctions often exist between immediate reactions and longer-term responses. [14]
Emotional responses to trauma include panic, shock, helplessness, anger, fear, sadness, guilt, and shame. Some individuals may demonstrate hypo-arousal, appearing numb, disoriented, detached, and withdrawn. Some individuals may experience longer term grief or mental health issues, such as PTSD, anxiety, depression, or substance use disorders.
Physical reactions at the time of the trauma may include tremors, sweating, rapid breathing, accelerated heartbeat, nausea, or faintness. Hyperarousal, also known as hypervigilance, serves a protective function at the time of a trauma; it is the body’s way of remaining prepared in the face of danger, however, it sometimes persists for years after a trauma has occurred and may result in a lower threshold for startle responses to loud noises or sudden movement. Some trauma survivors experience chronic health conditions including gastrointestinal issues, chronic pain, cardiovascular, neurological, urological, or dermatological disorders.
Trauma may impact cognitive functioning as well. Detrimental cognitive responses include difficulty concentrating and remembering, ruminating or intrusive thoughts, impaired decision-making, and excessive or inappropriate guilt. Researchers have described a phenomenon known as the cognitive triad: perceiving the world and people in it as dangerous, unpredictable, and untrustworthy; believing things will never change and viewing the future as hopeless; and seeing oneself as damaged or incompetent.[15]
Behavioral responses may include restlessness, irritability, agitation, angry outbursts, argumentative behavior, withdrawal, self-isolation, high risk or self-injurious behaviors, or increased use of alcohol, drugs, and tobacco.
A traumatic event may impair an individual’s ability to cope and trigger a “fight, flight, or freeze” reaction. Those who fight confront the threat; they may be angry, irritable, or confrontational in mediation. Those who flee, run away from the threat. In mediation, they may appear anxious, worried, unfocused, or overwhelmed. Individuals who freeze in response to a trauma shut down to block out the threat. They may present as numb, disassociated, indecisive, zoned out, or stuck. A fourth reaction described as fawning involves appeasing the threat. It is more likely to occur in response to childhood trauma or repeated trauma.[16] Those who fawn, tend to be people pleasers, have limited personal boundaries, avoid conflict, have difficulty saying “no,” and prioritize the needs of others over their own.
Sociodemographic factors shape individuals’ responses to trauma. Gender, age, race, ethnicity, religion, sexual orientation, disability, marital status, occupation, income, and education all influence the way an individual experiences and interprets trauma, and the way they view safety and privacy. These factors may also influence an individual’s beliefs about personal responsibility for the trauma, the meaning of symptoms, and acceptability of seeking support. Faith and spirituality can be a source of strength and comfort to some individuals.
Young children, who have not had time to develop and practice coping skills and do not have access to resources, often are more adversely affected by trauma long term. Older adults may have greater vulnerabilities, including compromised ability to survive the trauma without injury. They also are more likely to have a history of trauma merely by virtue of having lived longer, and therefore, may have an increased vulnerability to the cumulative effects of trauma.
Women are more likely to experience physical and sexual assault and are more likely to know the perpetrator. Whereas men are more likely to experience combat and criminal conduct perpetrated by someone they do not know.[17] African Americans experience higher rates of overall violence, aggravated assault, and robbery than Caucasians, but are equally as likely to be victims of rape or sexual assault. [18]
Lesbian, gay, bisexual, and transgender individuals may experience various forms of trauma associated with their sexual orientation, including rejection by families and religious leaders, a higher risk of assault and hate crimes, social exclusion, and lack of legal protection. [19]
Some people have more reserves to draw upon in response to trauma. A safe and secure childhood with loving and nurturing parents, a stable home, solid education and continued strong family ties and friendship bonds may diminish the harmful impact of a traumatic event. In contrast, those who come from fractured or dysfunctional families, have a history of abuse, neglect, or abandonment in childhood, and little or no exposure to healthy role models, may be more adversely affected by a traumatic event. According to Dr. Bruce Perry, psychiatrist and trauma expert, the nature and quality of relationships, connections to family, friends, and community are often more predictive of mental health than a history of adversity. Connectedness can countervail adversity.[20]
For most individuals, traumatic experiences typically do not result in long-term impairment. It is normal to experience traumatic events across the lifespan; often, individuals respond to them with resilience. Some examples of resilient behaviors include a more positive outlook, a greater appreciation for relationships, an enhanced sense of purpose, revised priorities, greater empathy for others, and increased charitable giving.
- 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. [21] These principles are remarkably consistent with the basic tenets of mediation.
Dr. 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. [22]
Safety
Safety encompasses physical and emotional 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 available 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 mediation sessions. 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. [23]
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 whatever is 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.
Trustworthiness and Transparency
Building and maintaining trust is especially important when working with individuals who have experienced trauma and 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.[24] Skillful and experienced mediators often demonstrate these characteristics.
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.
Empowerment and Choice
Mediators can cultivate empowerment by allowing each participant to have a voice, to tell their story, and share their own truth. The focus should be on the individuals’ strengths, self-determination, autonomy, choices, and control. 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. [25]
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 social, racial and cultural groups. The mediator must understand that participants may 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 and 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.” [26] 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 prompt 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 or impulsive; or hypo-aroused, 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; or take a walk and 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. [27]
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] Substance Abuse and Mental Health Services Administration. SAMHSA’s Concept of Trauma and Guidance for a Trauma-Informed Approach. HHS Publication No. (SMA) 14-4884. Rockville, MD: Substance Abuse and Mental Health Services Administration, 2014. (SAMSHA 2014)(hereinafter SAMSHA Trauma and Guidance 2014).
[2] SAMSHA Trauma and Guidance 2014.
[3] Substance Abuse and Mental Health Services Administration. Trauma-Informed Care in Behavioral Health Services. Treatment Improvement Protocol (TIP) Series 57. HHS Publication No. (SMA) 13-4801. Rockville, MD: Substance Abuse and Mental Health Services Administration, 2014.(hereinafter SAMSHA Trauma-Informed Care 2014)
[4] SAMSHA Trauma and Guidance 2014. The Law Practice Management Division of the American Bar Association is planning to release a book in the spring 2023 entitled Trauma-Informed Law: A Primer for Lawyer Resilience and Healing by Helgi Maki, Marjorie Florestal, Myrna McCallum and J. Kim Wright. The book is intended to be a primer on trauma-informed practices that attorneys can use to promote their clients’ best interests while supporting their own well-being. For attorneys who wish to share their views and provide input on this topic, a survey is available at https://forms.gle/YsbwdwRCpTrR6DZb6
[5] Substance Abuse and Mental Health Services Administration. Trauma-Informed Care in Behavioral Health Services. Treatment Improvement Protocol (TIP) Series 57. HHS Publication No. (SMA) 13-4801. Rockville, MD: Substance Abuse and Mental Health Services Administration, 2014
[6] Wilson, A., Pence, D, Conradi, L., Trauma-informed care, published online 2013 at https://doi.org/10.1093/acrefore/9780199975839.013.1063
[7] Proclamation 5806, National Trauma Awareness Month, 1988 at https://www.reaganlibrary.gov/archives/speech/proclamation-5806-national-trauma-awareness-month-1988
[9] Id.
[10] Centers for Disease Control and Prevention, Fast Facts: Preventing Adverse Childhood Experiences (updated April 6, 2022).
[11] Burke, N. J., Hellman, J. L., Scott, B. G., Weems, C. F., & Carrion, V. G. The impact of adverse childhood experiences on an urban pediatric population. CHILD ABUSE & NEGLECT, 35(6), 408–13 (2011); see also, Copeland, W.E., Keeler G., Angold, A., & Costello, E.J. Traumatic Events and Posttraumatic Stress in Childhood. Archives of General Psychiatry. 64(5), 577-584(2007).
[12] Save The Children 2014 National Report Card on Protecting Children in Disasters. http://www.savethechildren.org/atf/cf/%7B9def2ebe-10ae-432c-9bd0-df91d2eba74a%7D/SC-2014_DISASTERREPORT.PDF%
[13] American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. (DSM-5.) Arlington, VA, American Psychiatric Association (2013); see also Harvard Medical School National Comorbidity Survey at NCSR (By sex and age).xls (harvard.edu) (6.8% lifetime prevalence in 2007).
[14] Many screening tools exist for assessing trauma. The Stressful Life Experiences (SLE) screening is a checklist of traumas that also considers the individual’s view of the impact of those events on life functioning. SAMSHA Trauma-Informed Care 2014, p. 107, (Exhibit 1.4-3).
[15] SAMSHA Trauma-Informed Care 2014, p. 67
[16] Fawning was initially described by psychotherapist Pete Walker in his book Complex PTSD: From Surviving to Thriving (2013).
[17] SAMSHA Trauma-Informed Care 2014, p. 55.
[18] Id. at 56.
[19] Id.
[20] Perry, Bruce and Winfrey, Oprah, What Happened to You? Conversations on Trauma, Resilience and Healing, p.106 (2021)(hereinafter What Happened to You)
[21] 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.
[22] What Happened to You, p. 142.
[23] ISSUE BRIEF: Key Ingredients for Successful Trauma-Informed Care Implementation, by Christopher Menschner and Alexandra Maul, Center for Health Care Strategies (April 2016).
[24] Brown, Brené, Braving the Wilderness: The Quest for True Belonging and the Courage to Stand Alone(2019).
[25] Hicks, Donna, Leading with Dignity: How to Create a Culture That Brings Out the Best in People (2019).
[26] SAMSHA Trauma-informed Care 2014, p. xviii
[27] See Tips for Healthcare Professionals: Coping with Stress and Compassion Fatigue (SAMSHA 2020)