Through the Looking-Glass: Wellbeing in Arbitration — Part 1

Author: Amanda J. Lee*

“Well, in our country,” said Alice, still panting a little, “you’d generally get to somewhere else — if you ran very fast for a long time, as we’ve been doing.”

 “A slow sort of country!” said the Queen. “Now, here, you see, it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!”[1]

In Lewis Carroll’s classic tale ‘Through the Looking-Glass, and What Alice Found There’, our heroine Alice finds herself racing hand in hand with the Red Queen. Feeling somewhat discombobulated, Alice explains to the Queen that in her country, some degree of progress tends to be made if one runs very fast for a long time. The Queen dismisses Alice’s country as “[a] slow sort of country” because in the looking-glass world, it takes everything you have to give to simply remain where you are. To make progress, one must make at least twice as much effort.

As arbitration practitioners, we begin our careers with shiny rose-tinted spectacles firmly in place. Our professional goals, we tell ourselves, can be achieved if we apply ourselves diligently to the task of working very hard, for a long time. We will create opportunities for ourselves, build our network, and learn at the feet of our mentors. By putting one foot in front of the other, we will progress, and we will thrive.

When we seek to win a scholarship, obtain an LLM, secure an internship, become an associate, conduct advocacy at a hearing, publish a book, make partner, receive our first appointment as an arbitrator, win an award, or gain recognition from peers or directories, we convince ourselves that ‘arbitration country’ follows the same basic rules as Alice’s country. We will run very fast for a long time, and progress will be our reward.

And yet, as the field of arbitration continues to evolve and the level of competition for roles grows ever higher, the rules that apply to ‘arbitration country’ appear to be evolving too. It is no longer enough to simply work hard, be diligent, do a good job for our clients and our colleagues, and go home at the end of the day. That is the bare minimum required of us. It now takes all the running that we can manage to stay in the same place, and for many, the race to be run is beset with hurdles.

From the beginning of our careers, we are now expected to publish and to keep publishing, to speak and to keep speaking, to join bar associations and young practitioner groups and to take on leadership roles within such organizations. We must moonlight as event planners, authors, and public speakers. We have become consummate box tickers, constantly seeking to burnish our credentials to ensure that we shine as brightly as our colleagues.

We have travelled through the looking-glass, and we cannot stop running, even for a moment.

Wellbeing in the Legal Profession

The weight of looking-glass expectations is immense, and the ongoing impact of such expectations on the wellbeing of those who have chosen to pursue a career in this field, whether as arbitrator, counsel, expert, tribunal secretary, or otherwise, cannot and should not be underestimated. Mental Health Awareness Week and U.S. Mental Health Awareness Month falling in May provide an opportune moment to explore such issues further.

Although limited data is available about wellbeing among arbitration practitioners, recent studies exploring wellbeing in the legal profession abound. The results paint a bleak picture of about the fragile state of wellbeing among legal professionals, with diverse professionals at particular risk. As with the diversity dialogue, the spectre of intersectionality haunts this discussion.

On April 1, 2021, the International Bar Association (“IBA”) released the interim results of its survey on wellbeing in the legal profession, noting in particular the “disproportionate impact on the young, women, those who identify as an ethnic minority and those with disabilities”, and the stigma that still attaches to wellbeing issues, with 41% of those who responded indicating “that they could not discuss wellbeing issues with their employer without worrying that it would damage their career or livelihoods”.[2] 

Later that year, on October 26, 2021, the IBA launched a major new Report entitled ‘Mental Wellbeing in the Legal Profession: A Global Study’.[3] The Report is based on data obtained from two global surveys, both of which used the WHO-5 Mental Wellbeing scale to score individual wellbeing. Shockingly, the average overall wellbeing score for survey responders was 51%. A score below 52% provides a clinical basis to screen for depression. The average scores for young practitioners (43%), those with disabilities (45%), ethnic minorities (47%) and women (47%) are of particular concern. Of those surveyed, 1 in 3 said that their work had a negative, or extremely negative impact on their wellbeing.

More than 1,700 legal professionals completed a survey developed by LawCare, a charity that provides support for members of the legal profession in the UK. The results, which analyzed information provided by 1,700 professionals, were published in October 2021.[4] Participants scored an average of 42.2 on the Oldenburg Burnout Inventory (“OLBI”), which represents a ‘high risk of burnout’. The OLBI asks respondents to grade themselves on several statements linked to ‘exhaustion-vigor’ and ‘cynicism-dedication’. Exhaustion was a particular concern, with 69% of participants having experienced mental health difficulties (whether clinically or self-diagnosed) in the last twelve months.

Only 56.5% of those who were struggling discussed their mental health at work, with the fear of stigma, negative career implications, and adverse consequences on the finance and reputation fronts keeping others from sharing. Notably, more women (72.6%) participated in the survey than men (26.4%), and their average rate of burnout was higher; and participants from ethnic minority groups (11.5%) had higher levels of burnout than white participants. Participants who reported having a disability (9.3%) experienced higher levels of burnout than those without a disability.

LawCare’s 2021 Impact Report offers interesting insights into those who sought help and in what circumstances.[5] The majority of those who contacted LawCare for assistance were female (69%). 63% of those seeking support were trainee solicitors, pupil barristers, and those qualified for less than five years. 5% were law students. Those seeking support were experiencing a range of difficulties, including stress (33%), anxiety (13%), bullying (8%), depression (10%), and worries about career development (8%).

This data suggests that women in the law and the next generation of up-and-coming practitioners appear to need further support to protect their wellbeing, or perhaps that individuals with these profiles are more comfortable asking for help than their male and more senior colleagues. Either way, in a field such as arbitration, where the barriers to entry are so high, and significant pressure is placed on the shoulders of aspiring practitioners, the risks to wellbeing are evident.

Bloomberg Law’s most recent Attorney Workload & Hours Survey, which focused on the fourth quarter of 2021, paints a similarly bleak picture.[6] Of those who responded, 46% indicated that their wellbeing worsened in the fourth quarter of 2021. Notably, for the first time since the survey began in 2020, responders reported experiencing burnout more than 50% of the time. Those struggling reported an inability to disconnect from work, heavier workload and trouble focusing on work tasks as key struggles.  

For those who described their wellbeing as having worsened, personal challenges included disrupted sleep (83%), anxiety (81%), issues in personal relationships (47%), issues with physical health (40%), depression (43%), and the use of drugs or alcohol (13%). Just 3% of responders with worsened wellbeing reported no such challenges. Such personal challenges may manifest in different ways for arbitration practitioners, with even seemingly simple challenges like insomnia (which can be caused by stress, depression, and more) making it more challenging to shine at early morning hearings, meetings and webinars.

Stigma and Intersectionality

So, why are we not talking about mental wellbeing more? One of the key drivers is stigma. 41% of survey responders to the IBA’s survey reported that they would not discuss mental wellbeing concerns with their employer for fear it may have a negative impact on their career. Of those who responded to the survey, 32.1% feared that they would be treated differently, 24.1% felt that their employer did not sufficiently recognise mental wellbeing issues, and 17.2% feared that they would not be believed or taken seriously.[7]

Applied in the arbitration context, there is no shortage of talent, and the weight of such competition weighs on many—if not all—of us from time to time. Acknowledging weakness and admitting that we may need help takes significant strength, but such strength is infrequently recognized in the wellbeing context, with suffering in silence to avoid the risk of a detrimental career impact the inevitable result in many cases.

As with diversity, wellbeing cannot be viewed in a vacuum. Each one of us faces our own unique challenges. Aspiring practitioners from emerging jurisdictions, the stresses associated with security funding for an LLM, or managing expectations surrounding internships abroad, with the associated cost implications, are likely to face significant stress. Those seeking to secure their first role in the post-pandemic world, having potentially faced disruptions to their professional prospects due to cancelled bar exams and opportunities, face different challenges to practitioners who are responsible for caring for children, disabled, or elderly relatives or friends.

In part two of this blog post, discussion turns to the way forward, and how members of the arbitration community can better equip themselves to weather the storm during challenging personal and professional periods.  

*Amanda Lee is an International Arbitrator, Consultant at Costigan King and Founder of Careers in Arbitration. The views expressed herein are personal and do not reflect the views of any organization or institution. This blog post discusses sensitive issues, which some readers may find distressing.

[1] Lewis Carroll, Through the Looking-Glass, and What Alice Found There 42 (1871).

[2] IBA releases interim survey results on wellbeing in the legal profession, International Bar Association, (Apr. 1, 2021), https://www.ibanet.org/article/09C3DA0E-723F-4E21-9A7E-AA0DFF1FB627 (last visited May 14, 2022).

[3] International Bar Association, Mental Wellbeing in the Legal Profession: A Global Study (Oct. 2021), https://www.ibanet.org/document?id=IBA-report-Mental-Wellbeing-in-the-Legal-Profession-A-Global-Study (last visited May 14, 2022). The statistics that follow appear on page 9 as ‘Main findings from surveys’.

[4] LawCare, Life in the Law 2020/21 (Oct. 2021), https://www.lawcare.org.uk/media/14vhquzz/lawcare-lifeinthelaw-v6-final.pdf (last visited May 14, 2022). The statistics quoted appear in the Executive Summary on pages 6 to 8.

[5] LawCare, LawCare Impact Report 2021 (2021), https://www.lawcare.org.uk/about-us/our-impact/impact-report/ (last visited May 14, 2022). The statistics quoted appear on pages 4 to 5 of the Report.

[6] ANALYSIS: Attorney Well-Being Declines, With Burnout on the Rise Bloomberg Law (Mar. 3, 2022, 11:00 AM), https://news.bloomberglaw.com/bloomberg-law-analysis/analysis-attorney-well-being-declines-with-burnout-on-the-rise (last visited May 14, 2022). All statistics quoted are derived from this analysis.

[7] International Bar Association, supra note 4.