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Inspiring change

Feature Articles

Cite as: December 2015 89 (12) LIJ, p.48

Creating a healthy work environment is key to sustainable lawyering and the mental wellbeing of the profession.

By Associate Justice Mary-Jane Ierodiaconou*

snapshot
  • As a profession, we need to create a mentally healthy workplace.
  • Significant and effective change needs to occur in organisations so lawyers can have long, healthy and rewarding careers.
  • We need to foster relationships vertically and horizontally and be aware of unconscious biases.
  • I feel a sense of urgency about the need to address mental illness in the legal profession. Behind the statistics on the psychological distress are real people.

    Organisations such as the Tristan Jepson Memorial Foundation (TJMF) have done vital work in raising awareness of mental illness, especially among the legal profession. However, now that we have succeeded at putting mental health on the agenda, what’s next?

    At the Wellness Network for Law forum in February this year, the founder of the forum, Associate Professor Rachael Field, issued a call for action. She said that in order to get to the true heart of justice we need to be a profession that gets on top of these issues. She suggested that ethics needs to be our bedrock, fundamental to what we do and to our professional identity, and that we need to consider the ethics of care if we are truly to be a helping profession.1

    I urge you to take action. It is imperative that the legal profession takes immediate steps to create a mentally healthy workplace. Half-measures are not enough. I invite the profession to take an ethical approach to this issue.

    I will discuss two areas in which we can apply an ethical framework to create a mentally healthy workplace – sustainable lawyering and fostering connections – and conclude by answering the question “How do we make change happen?”

    An ethical approach

    An ethical approach offers the legal profession some much needed optimism. As Professor Christine Parker explains:

    “. . . Legal ethics literature sees the lawyer’s role as something to be proud of, not primarily because it is personally fulfilling or economically rewarding, but because the legal professional uses his or her personal skills to contribute to the advancement of law and justice. Legal professionals have a specific responsibility to make the law work as both a public good and in individual clients’ lives to help people live together”.2

    How can we apply our personal ethics and values to the organisations in which we work and in a manner that is consistent with our professional ethical obligations?

    Many organisations already have a mission statement of their values. For these organisations, taking an ethical approach should not be a huge leap forward. The challenge is applying these ethics.

    Sustainable lawyering

    I am a passionate advocate of sustainable lawyering – working in a manner that is conducive to wellbeing so that lawyers may have long, healthy and rewarding careers. When my former business partner and I were establishing our law firm 10 years ago, we started by brainstorming and listing our values. One of those values was collaboration. We wanted to establish a highly collaborative environment. We began sharing information with each other and our staff and took a collaborative approach to servicing clients, which was consistent with our professional ethical obligations regarding our duties to our clients.

    Applying a collaborative approach was also good for our wellbeing. Working collaboratively meant that debriefing was built-in to our system. It permitted our team to work part-work or take extended holidays as another lawyer was always on hand to look after our clients. It also promoted better advice and strategy for our clients – two heads are better than one.

    From individual to organisation

    The focus on risk and prevention in the legal profession has largely focused on individual resilience. While this is important, I believe that this focus has sidelined the important structural issues we need to address. I am not suggesting that we retreat from our individual responsibility for our personal wellbeing or back away from supporting important programs that focus on individuals such as counselling and mindfulness training. I am suggesting that in conjunction with these strategies, we address the structural issues that are creating risks in our workplaces.

    It moves us from thinking about this issue as a solely personal one to a social one.3

    Creating a mentally healthy workplace

    Job design

    Jobs that have high demands (such as time pressure) and low decision-making authority can be described as high-strain jobs.4 There is strong evidence of the connection between high strain jobs and mental illness.5 Many jobs in the legal profession fall into this category at one stage or another.

    Research suggests that if people in high-strain jobs are supported, it reduces the adverse impact on their wellbeing. It also equips people to deal with change, which is inevitable in today’s legal workplaces.6

    We need to provide people with informal and timely feedback. Recent thinking from leading human resources professionals suggests that formalised periodic appraisals are on the way out. They are being replaced with a more collaborative approach in the form of regular, informal conversations about work. This allows a feedback process more akin to encouragement and guidance and demonstrates that employees’ ongoing growth and development is valued. It also promotes responsibility and accountability. Regular good feedback helps sustain people.

    Another solution is to design roles that give people the opportunity to undertake a variety of tasks and work with a level of autonomy.7

    In legal workplaces, task variety and autonomy can be promoted in collaborative teams where people can allocate different types of work within their teams. This allows people to improve their skills and build relationships with colleagues. Perhaps you are thinking that this is counter-intuitive to specialisation, but it need not be. If we take workplace law, for example, people may rotate tasks between providing advice, delivering training to clients, representing clients in litigious matters and conducting workplace investigations. This all involves workplace law but is a diverse range of tasks.

    Other ways to promote skill variety and autonomy include providing secondment opportunities, giving people a chance to act in a higher position when appropriate, and participating in pro bono legal work or volunteering.

    Management training

    Research also suggests that management and leadership training is important in creating a mentally healthy workplace.8 Lawyers often become managers due to their technical expertise. It is unrealistic to expect they will absorb management skills by osmosis.

    Flexibility

    Flexibility has a positive correlation with wellbeing.9 Law firms have traditionally resisted calls for flexibility on the basis that they would lose clients. Research shows that this claim is false.10 The legal profession is well behind its clients in the area of flexibility. Why? I think the answer may be that many people have a conscious or unconscious bias against people working flexibly, believing that those who work anything other than full-time do not take their work seriously.11 For many, flexibility has been the key to remaining in the profession. Those of us in leadership positions working flexibly need to publicise it as much as possible. It should not be hidden from others for fear of being seen as somehow less than those who work in a more traditional way. The more we talk about flexibility, the more we will normalise it as just another workplace option.

    Organisational justice

    Our relationships with our colleagues affect our wellbeing. On the one hand, healthy support from colleagues, including managers, can make a positive difference to our wellbeing.12

    On the other hand, interpersonal conflict is commonly reported as a cause of workplace stress.13 Interpersonal conflict can be between peers or between an employee and their manager. Causes vary from miscommunication through to bullying and other unethical conduct.

    Research establishes that an effective intervention against interpersonal conflict is to enhance organisational justice.14 Low levels of justice increase the risk of mental health problems.15 Workplaces with low levels of justice lack effective systems for employees to raise concerns or complaints and do not address issues in an effective, timely manner.

    Enhancing organisational justice involves having policies in place that clarify what behaviour is and isn’t appropriate in the workplace. This includes policies on workplace bullying,16 equal opportunity and prevention of sexual harassment. These policies need to be implemented and applied when there is a complaint or inappropriate behaviour.

    These types of behaviour are not just unhealthy, they are unethical and unsustainable. Recently, and for the first time, the legal profession has expressly recognised this type of conduct as unprofessional conduct that may give rise to disciplinary action.17 Rule 42 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 provides that a solicitor must not, in the course of practice, engage in conduct that constitutes unlawful discrimination, sexual harassment or workplace bullying.

    Moving forward

    The phrase “toughen up princess” has gained some traction in legal circles. It is not helpful. In the context of legal education, Dr Colin James has written that it is not “a matter of getting lawyers to toughen up, as if resilience in legal practice involves being insensitive. On the contrary, sensitive legal practice may be ideal because the self-aware lawyer . . . will know how to self-protect, how to respond to unreasonable demands or implied expectations from the workplace culture, managing partners or clients”.18

    Anyone can suffer mental distress as a result of the conditions of their work, conditions over which employers can have significant control while employees may have very little.19 We need to move beyond the misconception that all mental distress is self-driven and occurs in isolation from the environment.

    Fostering connection

    Building connections with other people is vital to our wellbeing. Looking through the lens of ethics, we might ask, “Do our personal and professional ethics promote connection?”

    One important value our profession holds dear is collegiality. This value is conducive to wellbeing because it fosters mutually supportive relationships.

    In his book Flourish,20 Professor Martin Seligman outlines the five pillars of wellbeing: positive emotion (of which happiness and life satisfaction are aspects), engagement, relationships, meaning and achievement.

    Author David Rock, whose work draws on neuroscience, has commented that studies are now showing that the brain interacts with social needs using the same networks as it uses for basic survival. Being hungry and being ostracised activate similar threat and pain responses, using the same networks.21

    He says that being connected to others in a positive way, feeling a sense of relatedness, is a basic need for human beings, similar to eating and drinking.22

    So, for our wellbeing, workplaces need to foster work practices that give people the opportunity to connect and work with others. Workplaces need to have diversity policies that encourage collaboration between diverse groups of people. There are already organisations, particularly those with global operations, doing that.23 It is good for people, and good for innovation and productivity.

    We need to interrogate ourselves about our unconscious biases. Your personal decisions will have a ripple effect on the connections that are created within your organisation and with external stakeholders, including clients.

    We need to foster and build connections horizontally and vertically. By horizontally, I mean between peers. By vertically, I mean between senior and junior people. Mentoring is invaluable, as is reaching out to give a hand to someone who is not connected, or not as well connected. You will learn so much more than remaining in your comfort zone. Start by extending your hand to someone coming up behind you. There is always someone behind you.

    How to make change happen

    Professor John Kotter, in his book Leading Change,24 outlines an eight-step process for creating major change in an organisation:

  • establish a sense of urgency
  • create a guiding coalition to work together as a team to lead change
  • develop a vision and strategy to direct the change effort and to achieve the vision
  • communicate the change vision and strategies, including role modelling the expected behaviour
  • empower broad-based action, including encouraging non-traditional ideas, activities and actions
  • generate short-term wins, including planning for visible improvements in performance, and recognising and rewarding those people who make the wins possible
  • consolidate gains and produce more change
  • anchor new approaches in the culture.
  • Call to action

    Everyone can contribute to creating a mentally healthy workplace. Ask yourself, what can I do? This might be as simple as saying “How are you?” next time you see a colleague rather than “Are you busy?” It might be asking someone “R U OK?” It might be creating a mentoring relationship or considering how you are measuring work performance and output in your organisation. They are all interconnected.

    If you have not already, it’s time to ask yourself whether you are building positive or negative connections and to reflect on unconscious biases.

    Most importantly, take care of yourself. For any of you who are not feeling well, know that help exists.

    At organisational level

    Significant and effective change must be initiated and maintained at the organisational level if we are to create and maintain healthier workplaces. If your organisation has not signed up to the TJMF guidelines, I urge you to consider doing so. I am delighted that the Supreme Court of Victoria is a new signatory to the guidelines.

    Pleading Sanity
  • Pleading Sanity is a support group for lawyers living with mental health challenges in Victoria. It holds informal meetings that give you the opportunity to share your experiences. Contact pleadingsanity victoria@gmail.com for more information.
  • Other helpful contacts
  • Tristan Jepson Memorial Foundation www.tjmf.org.au
  • Vic Lawyers Health 1300 664 744
  • Beyondblue 1300 22 46 36
  • Black Dog Institute 02 9382 2991
  • Lifeline 13 11 14
  • SANE 1800 187 263
  • Men’s Line Australia 1300 78 99 78
  • Salvo Care Line 1300 36 36 22
  • As a profession

    This is a journey the legal profession needs to undertake together. We are uniquely placed to lead this change. We are experts in ethics. Our values can drive this change. We are experts at problem-solving. We understand how to balance competing values and negotiate solutions. We also understand the need to make evidence based decisions.

    Applying an ethical approach, creating mentally healthy workplaces is consistent with the values many lawyers hold dear, including collegiality. We must care for one another as well as our clients and the broader community.

    Mary-JaneĀ IerodiaconouĀ is an Associate Justice of the Supreme Court of Victoria. The author would like to thank Adam Gleeson for his research assistance. *This is an edited version of her speech at the Annual Tristan Jepson Memorial Foundation Lecture, Melbourne 2015. 1. Wellness Network for Law Forum, Australian National University, 5-6 February 2015. 2. Christine Parker, “The ‘Moral Panic’ over Psychological Wellbeing in the Legal Profession”, 2015, 37(3) in LSJ 1103 at 1132. 3. For a discussion on moving the topic beyond a personal one, focusing on law students, see: Paula Baron, “A Dangerous Cult: response to ‘The Effect of the Market on Legal Education’”, 23(2) Legal Education Review 274 at 282. 4. Dr Samuel B Harvey et al, “Developing a mentally healthy workplace: A review or the literature”, a report for the National Mental Health Commission and the Mentally Healthy Workplace Alliance (2014), p13 www.headsup.org.au/docs/default-source/resources/developing-a-mentally-healthy-workplace_final-november-2014.pdf?sfvrsn=8. 5. Note 4 above, p14. 6. Note 4 above, p14. 7. Note 4 above, p15. 8. Note 4 above, pp29, 34-36. 9. Note 4 above, p32. 10. www.vwl.asn.au/index.php?page=publications&sub=vwl_pub. 11. Law Council of Australia, ‘National Attrition and Re-engagement Study Report’ (2014) 76 www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/NARS%20Report_WEB.pdf (‘NARS Report’). 12. Note 4 above, p17. 13. Note 4 above, p18. 14. Note 4 above, pp29, 34-36 15. Note 4 above, p 21. 16. Note 4 above, p34. 17. Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015, r2.3. 18. Dr Colin James, Lawyers’ Wellbeing and Professional Legal Education, University of Newcastle Legal Centre, www.tjmf.org.au%2Fwp-content%2Fuploads%2F2011%2F10%2FColin_James_Lawyers_Wellbeing_and_Professional_Legal_Education_2008.pdf&usg=AFQjCNFuF-f0pqkPiGqn9hJjLchWjoEb1g. 19. Martin Shain, “Psychological Safety at Work: Emergence of a Corporate and Social Agenda in Canada” (2012) 11(3) in International Journal of Mental Health Promotion 42, 47. 20. Martin Seligman, Flourish, Simon & Schuster 2011. 21. David Rock, Your Brain at Work (2009) pp158-159. 22. Note 21 above, p164. 23. See, for instance, examples discussed by Professor R Moss Kanter, Supercorp: How Vanguard Companies Create Innovation, Profits, Growth, and Social Good, Crown Business, 2009, ch 7. 24. John Kotter, Leading Change, Harvard Business Review Press, 2012.

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