Through the Looking-Glass: Wellbeing in Arbitration — Part 2

Author: Amanda J. Lee*

“The Knight looked surprised at the question. ‘What does it matter where my body happens to be?” he said. “My mind goes on working all the same.””[1]

During the pandemic the arbitration community responsibly sheltered in place while finding ways to continue to go about the business of resolving international disputes despite living in unprecedented times. Working from home, the lines between our working lives and personal lives became ever more blurred. As the White Knight in Through the Looking-Glass observed, it no longer matters where our bodies happen to be—our minds continue to work relentlessly wherever we are, with—for many—an unavoidable negative impact on our wellbeing.

Part one of this blog post explored the present state of wellbeing in the legal profession, with specific consideration of the way in which wellbeing issues can affect arbitration practitioners. Part two explores the way forward and considers the proposals made by the International Bar Association (“IBA”), LawCare, and the New York State Bar Association (“NYSBA”), before previewing a new initiative to support arbitration practitioners who are struggling with their wellbeing.

The Way Forward

The IBA’s report ‘Mental Wellbeing in the Legal Profession: A Global Study’ provides us with ten Mental Wellbeing Principles for the Legal Profession.[2] First and foremost, we are reminded that “Mental wellbeing matters”. Although we must each run our own race, we do not have to race alone. The IBA acknowledges that lawyer mental wellbeing is a global crisis, and we are all at risk. The second Mental Wellbeing Principle is particularly important to remember:

“Mental wellbeing is not weakness: The notion that someone who is experiencing a mental health difficulty and/or poor levels of mental wellbeing is personally ‘weak’ or in some way unsuitable for legal practice must be refuted.”[3]

People who are struggling to maintain their mental wellbeing or who have struggled in the past are neither weak nor irresponsible or unfit for professional practice. They slay invisible dragons every day. Only by recognizing and acknowledging this can we move forward from a position of acceptance and support.

Intersectionality is a key aspect of any analysis of wellbeing—so many of us are already fighting battles on multiple fronts. As we forge our path in this profession, we must not forget that the tracks of some of our fellow athletes are littered with hurdles presented by gender, race, nationality, sexuality, gender identity, neurodiversity, disability, professional background, socio-economic background and so much more. The eighth IBA Mental Wellbeing Principle for the Legal Profession reflects this reality:

“Recognise intersectionalities: Issues of equality, diversity and inclusion have an effect on, and are arguably at the heart of, the mental wellbeing of the legal profession. The nature and cause of difficulties experienced by specific groups, including younger, female, ethnic minority and legal professionals with disabilities must be understood, acknowledged and tackled.”

As we continue to explore ways in which diversity can be promoted and advanced within the field of international arbitration, it is important to acknowledge invisible challenges and to find ways to accommodate them. By way of example, a significant percentage of arbitration practitioners will never have to manage professional practice while managing the symptoms of menopause, perimenopause, or menstruation, which may have a significant impact on mental and physical wellbeing at different periods.

Knowledge is power, and as friends, colleagues, leaders, mentors, sponsors, and advocates, we all have an obligation to educate ourselves about wellbeing issues and how our behavior may impact on others. The IBA acknowledges the importance of sharing good practices at all levels and learning from others in its ninth and tenth Mental Wellbeing Principles. To that end, it is encouraging to see greater attention being drawn to wellbeing issues in the field of arbitration, and to the full and active participation of members of the community with different needs.

In May 2021, the ICC established a new Task Force on Disability Inclusion and International Arbitration. The Task Force will develop guidelines to “enable disability inclusion in international arbitration”, with a view to ensuring that international arbitration is equipped to adapt to and accommodate the needs of all members of the community.[4] The Task Force will consider both physical and mental disabilities, and as such, will ensure that those who may be struggling with wellbeing issues are supported to participate fully in international arbitration proceedings.

As the spotlight has increasingly focused on wellbeing, programming has responded in kind. By way of example, during Paris Arbitration Week 2021, the LCIA Young International Arbitration Group held a webinar on ‘Managing Stress in the International Arbitration Arena’, which explored some of the causes of stress in this field and how practitioners can better manage their own stress levels.[5] During New York Arbitration Week 2021, Young International Arbitration Practitioners of New York, in partnership with the New York International Arbitration Centre, ran a session focusing on mental health in the virtual world.[6]

Wellbeing was on the agenda once again at London International Disputes Week 2022, with a session entitled ‘”If you’re going through hell, keep on going” – a motivational statement for its time from Winston Churchill, but how sustainable is that approach for the modern disputes professional?’[7] The session explored the practical realities of dispute resolution practice and considered what practical steps could be taken to ensure that wellbeing is not sacrificed on the altar of our clients’ best interests.

The conversation has started and the first steps towards normalizing discussion and understanding of the impact of arbitration practice on our bodies and minds have been taken. As a global community, we must continue to move forward, recognizing that for our colleagues in many jurisdictions, open discussion about wellbeing remains taboo. It is therefore vital that tools are available to help those who need help to obtain it regardless of their circumstances.

Recommendations

Initiatives such as the IBA’s Global Study on Mental Wellbeing in the Legal Profession, and the work of the IBA Wellbeing Taskforce, LawCare, and the NYSBA Task Force on Attorney Well-Being have provided useful insights and proposals. In an international field such as arbitration, any recommendations made must be interpreted through a cultural lens, mindful that many practitioners hail from jurisdictions where the stigma surrounding wellbeing issues is particularly acute.

In October 2021, the New York State Bar Association (“NYSBA”) released its Report and Recommendations of the NYSBA Task Force on Attorney Well-Being.[8] The Task Force surveyed 3,089 members of the legal profession, who identified a lack of boundaries regarding downtime and feeling as if they were ‘never off’, client expectations and demands, and financial pressures in the business of law as the factors that have the greatest detrimental impact on their wellbeing.

The legal profession is often perceived as ‘help-resistant’.[9] As lawyers, our role is to provide help to others, with the unsurprising result that many of us find that our needs end up on the proverbial backburner. The legal field “prizes helping others but never seeking help for themselves and an inability to admit vulnerability – a trait universally perceived as a sign of weakness”.[10] For arbitration practitioners, operating in an environment of intense competition, displays of vulnerability are generally to be avoided.

Key recommendations made by the NYSBA Task Force on Attorney Well-Being included a proposal that billable hours and bonus availability be capped at 1,800 hours. Emphasis was also placed on the importance of creating wellbeing committees for lawyers and other legal employees, and to developing strong mentoring and sponsorship programs to provide sufficient support.[11]

It was also proposed that employees of all genders be supported to take all vacation time and parental leave available to them, and to take advantage of flexible working policies where available. Mindful that wellbeing challenges often begin before practice commences, the Task Force recommended that a wellness pledge for law schools and employers be developed, and that suitable online resources are developed to emphasize the value of wellbeing and self-care.

The challenges inherent in contentious practice were reflected in the recommendation that lawyers should be permitted to continue to appear virtually in certain proceedings, and accommodations provided by courts (and, by inference, tribunals) should include permitting lawyers with disabilities to participate virtually. Judicial training programs should support the recommendations made and explore the challenges presented by wellbeing issues.

In the same vein, LawCare’s research, published in its ‘Life in the Law 2020/21 Report’ generated a separate, albeit similar, series of recommendations, which emphasized the need to “change the organisational culture of law” and ensure that those tasked with managing law firms possess the skills required to properly support team members and bring about change.[12] Identifying and engaging with key stakeholders, both professional and regulatory in nature, is key to achieving change.

Education is once again emphasized, with the importance of raising awareness across the legal profession highlighted. Although progress has been made in recent years, challenging stigma surrounding wellbeing issues remains vital, and intersectionality must not be forgotten, with LawCare noting the need to “[c]onsider the intersectional nature of wellbeing within the context of multiple factors such as gender, ethnicity, disability, and sexual orientation.”[13]

It remains to be seen whether such recommendations will be adopted by professionals operating in the arbitration space. Regrettably, nothing less than a wholesale culture change is likely to tackle the wellbeing epidemic that is brewing. For every colleague who has the strength to seek support, there are likely to be many more who do not, whether due to concern about stigma, lack of awareness of the option to do so, use of support tools offered by their firm, chambers, or organization, or for other reasons.

Introducing ARBalance

The theme of Mental Health Awareness Week 2022 is loneliness, a topic that is of relevance as we begin to emerge, as a community, from the ravages of the pandemic. Bruised but not broken, we are stronger together and we have endured together. However, the pandemic has brought many of the challenges experienced by arbitration practitioners into stark relief and, for many, has led to wellbeing crises and challenges that they have not experienced before.

Although wellbeing increasingly features on arbitration conference schedules, and this development is to be encouraged and commended, many sessions are not recorded and cannot be accessed easily by practitioners who are keen—or indeed, desperate—to learn more about wellbeing challenges in the profession and how to manage and overcome them.

Struggling with wellbeing issues, whether personal or within your family, friendship group or team, can be an enormously lonely pursuit. One of the greatest challenges is knowing where to find appropriate help when you need it, and how to find compassionate and understanding allies who have been through similar struggles and are willing to share strategies developed on the wellbeing battlefield. The decision to discuss individual wellbeing issues is personal, and no one should be pressured to do so unless and until they are comfortable sharing.

To that end, ARBalance, launching in 2022, will provide programming and resources for arbitration practitioners and aspiring practitioners who are struggling with, or simply keen to safeguard, their wellbeing. Exploring sensitive topics such as anxiety, bullying, burnout, depression, imposter syndrome, menopause, and more through an arbitration lens, ARBalance will offer a safe space to explore a catalogue of wellbeing issues and produce a library of on-demand resources for those who need help but are concerned about the stigma of seeking it.

Those who are interested in learning more about ARBalance are invited to follow the initiative here. After all, if the rules of ‘arbitration country’ mean that we must run twice as fast to make progress, it is surely better not to run the race alone.

*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 173 (1871).

[2] 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 ten IBA Mental Wellbeing Principles for the Legal Profession, set out on page 10 of the Report, include: (1) Mental wellbeing matters; (2) Mental wellbeing is not weakness; (3) Raising awareness is fundamental; (4) A commitment to change, and regular continuing assessment; (5) Policies matter; (6) Maintain an open dialogue and communication; (7) Address systemic problems; (8) Recognise intersectionalities; (9) Share good practices; and (10) Learn from others.

[3] Id.

[4] ICC Court issues call for disability task force candidates, International Chamber of Commerce  (June 7, 2021), https://iccwbo.org/media-wall/news-speeches/icc-issues-call-for-disability-task-force-candidates/ (last visited May 14, 2022).

[5] Managing stress in the international arbitration arena, Young International Arbitration Group (Sept. 21, 2022), https://www.lcia.org/events/yiag-webinar-managing-stress-in-the-international-arbitration-245.aspx (last visited May 14, 2022).

[6] Getting it Right – Arbitrating in the Post-COVID Virtual Arena, New York International Arbitration Center (Nov. 18, 2021), https://nyarbitrationweek.com/getting-it-right-arbitrating-in-the-post-covid-virtual-arena/ (last visited May 14, 2022).

[7] Event Programme, London International Disputes Week (2022), https://2022.lidw.co.uk/programme/# (last visited May 18, 2022).

[8] New York State Bar Association, Report and Recommendations of the NYSBA Task Force on Attorney Well-Being (2021), https://nysba.org/app/uploads/2021/10/Report-on-Task-Force-on-WellBeing-APPROVED-HOD-no-comments-or-staff-memo.pdf (last visited May 14, 2022).

[9] Id. at 9.

[10] Id.

[11] Id. at 98–106.

[12] 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 recommendations discussed herein appear at page 8 of the Report.

[13] Id.