Promoting Law Student and Lawyer Well-Being in Australia and Beyond

Rachel Field,James Duffy,Colin James

• Éditeur: Routledge
• Année: 2016
• ISBN:
  9781317074731
• Édition: 1
• Sujet: Droit
• Sous-sujet: Droit public

University can be a psychologically distressing place for students. Empirical studies in Australia and the USA highlight that a large number of law students suffer from psychological distress, when compared to students from other disciplines and members of the general population. This book explores the significant role that legal education can play in the promotion of mental health and well-being in law students, and consequently in the profession. The volume considers the ways in which the problems of psychological distress amongst law students are connected to the way law and legal culture are taught, and articulates curricula and extra-curricula strategies for promoting wellbeing for law students. With contributions from legal academics, legal practitioners and psychologists, the authors discuss the possible causes of psychological distress in the legal community, and potential interventions that may increase psychological well-being. This important book will be of interest to legal academics, law students, members of the legal profession, post-graduate researchers as well as non-law researchers interested in this area.

1 Valuing Persons and Communities in Doing Wellness for Law Well

Stephen Tang^*

Introduction

During the brief history of Australian research and practice about wellness in legal education and the profession, we have been actively pursuing three goals: (i) understanding the onset and causes of psychological distress; (ii) developing ways to prevent and ameliorate distress; and (iii) fostering and promoting wellbeing within law schools and the legal profession.¹ This chapter addresses the latter two objectives, and considers how we can be most effective when developing strategies and programmes which address psychological distress or promote psychological wellbeing. Rather than discuss the merits of specific wellbeing programmes or initiatives, this chapter will step through several challenges in working together with our law students and legal professionals towards these objectives. Acknowledging these issues critically helps us to reach our shared visions for wellness in the study and practice of law, while avoiding some of the hazards which hinder progress or inadvertently make things worse.

From here, the chapter briefly surveys the normative landscape in which wellness is now situated and the ambiguities that have arisen during this time of transition. It then provides a psychological basis for reconciling the tension between understanding the unique personal experience of wellbeing and distress and our strategies and programmes which generally operate at a community level. Next, the chapter considers the two objectives of promoting wellbeing and addressing distress as two different strategies. Maintaining this distinction ensures that we develop appropriate programmes which address each set of needs and priorities. Finally, the study discusses the importance of creating and adapting theories of wellbeing and distress which guide our programmes. This requires us to develop our own evidence-based models and practices, which is predicated on the shared task of understanding the personal and collective experiences of our students and lawyers.

I write this as a psychologist embedded within a law school. Not only does this set me apart from other helping professionals, but it also means that my views do not adequately consider the sociological, philosophical or ethical considerations of wellbeing. I acknowledge my disciplinary bias, but I suggest that any boundaries are permeable and should not have a limiting or deterring effect on our work. These are therefore my reflections, rather than prescriptions, on our journey so far and what might lie ahead. I am aware of the cognitive bias known as the false consensus effect whereby I may be overestimating how much others may view this work through the same psychological lenses as I do.² Much of this, accordingly, is a self-directed reminder about being mindful and respectful of the assumptions, explanations and blind-spots about wellness that we all have. During the past few years where we have discovered many new ideas and occasionally changed our minds,³ this chapter is also a search for some uniting principles which may help us to be flexible in pursuing our objectives while staying well ourselves.

Wellbeing: It’s a Thing Now?

Promoting wellbeing and addressing distress in law students and lawyers is not a new idea. It has always been an integral part of legal education and the profession as part of good pedagogy, pastoral care, and personal and professional development. However, there has been a change over the past few years from a stance of raising awareness of mental health and wellbeing in legal education and practice⁴ to taking direct and practical action on wellness as part of establishing positive norms or in compliance with new regulatory requirements.

In legal education, for example, the Council of Australian Law Deans’ 2013 Guidelines on Promoting Law Student Well-Being specify that it is ‘good practice’ to ‘actively educate and disseminate information around the issues of mental illness and student distress’;⁵ to ‘integrate strategies for the promotion of law student well-being into teaching and learning practices’;⁶ and to ‘evaluate the efficacy of interventions’ about wellbeing.⁷

Similarly, the Law Admissions Consultative Committee’s recently revised PLT Competency Standards place a positive duty on practical legal training providers to ‘make applicants aware of the benefits of developing and maintaining personal wellbeing in their professional and personal lives’.⁸ Although this requirement is phrased in terms of information and awareness, the outcomes envisaged could only be achieved through experiential programmes rather than learning the ‘rules’ of wellbeing.

The Tristan Jepson Memorial Foundation’s Best Practice Guidelines on psychological wellbeing also envisage a more active role for legal organizations in directly addressing wellness as part of a psychologically safe workplace.⁹ The guidelines encourage psychological health and resilience programmes to be available for all employees, and anticipate the use of specific psychological and social support interventions.

This is not the place to consider the appropriateness of this turn towards recognizing, and possibly inadvertently reifying, wellness. Wellness in law is now a normative project. The evidence about levels of distress and ill-health in lawyers and law students that has brought us to this point speaks for itself.¹⁰ What remains is the challenge of translating ‘wellness’ or ‘wellbeing’, which are usually undefined at this level, into strategies and programmes which are effective and meaningfully integrated into legal education and practice. Without a suitable framework for how to do this, our objectives risk being dismissed as a regulatory overhead. The concept of wellness may even be co-opted into other incompatible agendas. To establish a base for proper action, therefore, we return to the person and the community.

The Psychological: Persons and Communities

A psychological approach has often been adopted in the Australian and international research on wellness in law students and lawyers. Psychological and psychometric methods are commonly used in the measurement of distress and wellbeing. Psychological or psychosocial theories are used to explain wellbeing or its absence. Wellbeing programmes are often informed by evidence-based psychological interventions and other psychotherapeutic techniques.

However, we must be clear what we mean by ‘psychological’ before we can effectively develop effective strategies and programmes. There are two ways in which this term can be misconstrued. First is the view that the word ‘psychological’ limits the scope of ‘wellness’. Such a misreading holds that psychological wellbeing is a psychologized definition of wellness, which is necessarily individualistic, decontextualized and technical.¹¹ This is behind the charge that psychological strategies and programmes for wellness address the wrong problem, only making the situation worse at the sociocultural level.¹²

Alternatively, the word ‘psychological’ may invoke an attitude of deference towards those who apparently have the expertise in wellbeing, especially ‘psy’ professionals such as psychologists, psychotherapists or psychiatrists.¹³ This is based on the false assumption that the knowledge and skill to achieve our wellness objectives is situated outside of our legal communities. Moreover, it reinforces the underlying attitude that wellness is purely a personal problem separate from what the legal profession or law schools should be concerned about. If we do propose psychological strategies and programmes in this climate, we may already run into barriers between those who have the perceived authority to intervene and those who are the objects or ‘targets’ of such action.

Some of this potential confusion may be because we are straddling two different levels of analysis. Part of our work is informing ourselves about students’ and lawyers’ personal experiences of law school or legal practice and how they may be related to wellbeing or distress. Yet we also tend to work at a collective level, identifying trends and differences across groups. Sometimes we aggregate these findings into descriptions of the average or typical student or lawyer. Our actions are typically to consider our entire community, or at least large segments within it, rather than establishing one-on-one therapeutic or pastoral responses. Rather than individualising the problem, here we may instead run the risk of homogenising our students and lawyers.

Understanding and Empathy

There is no need to treat these two perspectives as inherently incompatible, and thereby force a choice between them. We can embrace both the individual and community levels concurrently as a dialectic, with each informing the other. As a starting position towards reconciling the two approaches, I am inclined towards a theory of the person in the humanistic psychological tradition.¹⁴ Following in the footsteps of Gordon Allport, Abraham Maslow, Carl Rogers and others, we can view a person as being irreducible to parts and always in search of meaning, connection and creativity.¹⁵ Sass describes the humanistic psychological tradition as recognising a person’s freedom and choice, the uniqueness of each person’s character, values and goals, and recognising the subjectivity and ‘innerness’ of experience.¹⁶

Wellbeing and distress, therefore, are also embedded within the unique subjective experience of a person as a whole, rather than just being attributes of a person. There is a danger of skipping too quickly from the person to a description of a person, even though there is a legitimate place for theory and abstraction. Our understanding of people begins instead with empathy as a ‘way of being’, to borrow Rogers’ phrase.¹⁷ Such empathy is more than a technique. It is an ongoing sensitivity and attunement to the world of the person, which is also useful as a guide for our work alongside law students and lawyers:

I am not trying to ‘reflect feelings’. I am trying to determine whether my understanding of the Client’s inner world is correct – whether I am seeing it as he/she is experiencing it at this moment. Each response of mine contains the unspoken question, ‘Is this the way it is in you? Am I catching just the color and texture and flavor of the personal meaning you are experiencing right now? If not, I wish to bring my perception in line with yours.’¹⁸

Empathy also means understanding the person in her or his continuity and change, rather than as a frozen snapshot. Personality psychologist Dan McAdams says that to understand a person in this full sense requires more than a set of static traits or types, but requires an appreciation of the stories which tell of the unity and purpose of a person’s life.¹⁹ This psychological approach places a primary emphasis on upholding the integrity and relatability of the entire person. As psychoanalyst and philosopher Donna Orange writes:

We believe that our involvement in humankind means all human experience is in principle understandable through empathic dialogue, including its nonverbal or embodied forms. This means that although you or I may not be able to understand every patient, no patient, no psychosis, no cultural difference, no form of otherness lies outside the possibility of understanding by someone.²⁰

However, as Pau...

Table des matières

• Cover
• Title
• Copyright
• Contents
• List of figures
• List of tables
• Notes on contributors
• Acknowledgements
• Introduction
• 1 Valuing Persons and Communities in Doing Wellness for Law Well
• 2 Towards an Integrated, Whole-School Approach to Promoting Law Student Wellbeing
• 3 The Persistence of Distress
• 4 Law Student Lifestyle Pressures
• 5 The Relationship Between Class Participation and Law Students’ Learning, Engagement and Stress: Do Demographics Matter?
• 6 Vitality for Life and Law: Fostering Student Resilience, Empowerment and Well-Being at Law School
• 7 Resilience and Wellbeing Programmes: The Practical Legal Training Experience
• 8 Resilient Lawyers: Maximizing Well-Being in Legal Education and Practice
• 9 Using Peer Assisted Learning to Develop Resilient and Resourceful Learners
• 10 On Being, Not Just Thinking Like, a Lawyer: Connections Between Uncertainty, Ignorance and Wellbeing
• 11 Balance and Context: Law Student Well-Being and Lessons From Positive Psychology
• 12 Connecting Law Students to Health and Wellbeing
• 13 Contemplative Practice in the Law School: Breaking Barriers to Learning and Resilience
• 14 Harnessing the Law Curriculum to Promote Law Student Well-Being, Particularly in the First Year of Legal Education
• 15 Beyond the Curriculum: The Wellbeing of Law Students Within Their Broader Environment
• 16 Dealing With Resistance to Change by Legal Academics
• Index