For scuba divers, these three words can make or break a successful ascent to the surface. At 30-meter underwater if something goes wrong, panic or a knee-jerk reaction may very well prove fatal.

Diving teaches you self-regulation and mindful awareness. Stopping and taking careful consideration of the situation before reacting is what gets you out of trouble. This is equally true in legal practice.  

Mindful awareness of emotions can help lawyers falling victim to the reactive state of mind activated in a disagreement. This “triggering” happens when our minds switch into autopilot mode. In this mode our primal instincts take over; we protect ourselves against a perceived threat, rather than responding rationally.

The players all played at once without waiting for turns, quarrelling all the while, and fighting for the hedgehogs; and in a very short time the Queen was in a furious passion, and went stamping about, and shouting “Off with his head!” or “Off with her head!” about once in a minute.

The Queen in Lewis Carroll’s Alice in Wonderland had only one way of settling difficulties, great or small: “Off with his/her head!” While this might sound like a far-fetched metaphor, Mr Carroll’s social commentary highlighted how well-meaning adults can sometimes “knee-jerk” handing out judgment and condemnation rather than responding with wise consideration, compassion, and self-regulation. It is often a lack of impulse control that fuels bullying, particularly in the workplace and on social media. And recent research suggests that workplace bullying is occurring with greater frequency since the dawn of COVID-19.

Bullying in the workplace

Workplace bullying is partly described in the Uniform Solicitors’ Conduct Rules as behaviour that includes “behaviour that could be expected to intimidate, offend, degrade or humiliate.” Solicitors are prohibited, under rule 42.1.3, from engaging in conduct, in legal practice, that constitutes workplace bullying.

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But, even pre-COVID-19, workplace bullying appears to be endemic in the legal profession.

The NARS Report (2014) recorded that 50 per cent of female lawyers and 38 per cent of male lawyers had reported that they had experienced bullying. Similarly, the International Bar Association’s Us Too? Report (2019) recorded that one in two female respondents and one in three male respondents reported that they had experienced bullying.

COVID-19 and the new (virtual) workplace

And then along came COVID-19. COVID has changed everything. Our bricks-and-mortar workplaces have receded into a virtual landscape. This presents new and additional challenges in respect to bullying, in fact recent research indicates that inappropriate behaviour has increased.

The WBI Workplace Bullying Survey Report (2021) records that half of the respondents reported experiencing or witnessing mistreatment during online meetings. The majority, 70 per cent reported that online mistreatment happened publicly in front of others. This included being berated at group meetings in which perpetrators magnified humiliation by performing in front of an audience of employees.

And then there is social media. Social media is increasingly being used by lawyers as a tool to market themselves professionally. It has also become a soapbox for social justice advocacy. In some instances, it provided marginalised groups and individuals with a platform to have a voice and further their cause.

The nature of social media however is that things can happen very quickly. All can be provoked emotionally when it comes to other people’s perceived violations of social expectations. Knee-jerk reactions are far more common. There is a term for the judgment and punishment that regularly develop from this vitriolic echo chamber: social mobbing. And it’s really a bully in sheep’s clothing.

In this virtual world, very few appear to pause and think. Those who do not make comments that unambiguously align with the dominant orthodox narrative are quickly mobbed and even “de-platformed” in what is now known as “cancel culture”. There is no debate, no examination of ideas. You are either with the mob or against it.

The problem with much of the emotion exhibited on social media is that it is unprocessed and reactive: instinctual, primitive-brained, unmediated and unmetabolised emotion in its purest form. You might liken it to impulsive road rage.

Public shaming is not a new phenomenon. We have seen civilisations move away from it partly in recognition of its cruelty. Instead of decentralising communication into a level playing field, social media has become a vessel for the re-establishment and re-enforcing of tribal groupings, and the monopolisation of debate.

A health hazard

Workplace bullying in the legal profession is widespread and dangerous to the ethical practice of law, lawyer wellbeing and productivity.

Bullying leaves victims feeling powerless and broken. Research suggests that the body’s response to bullying is similar to a trauma response.

People who have experienced bullying report trouble sleeping, appetite changes, anxiety, panic attacks, reliance on alcohol and nightmares about workplace situations. Most disturbingly, the IBA Wellbeing Survey (2020) illustrated that bullied lawyers are more than three times as likely to experience suicidal thoughts and seven times as likely to self-harm.

When the bullying behaviours come from a manager or team, the options of who to confide in suddenly become very limited. In turn, victims feel abandoned, internalising the comments and isolation leaving them churning emotions from shame to despondency.

Psychosocial risk and safety

Bullying is considered a hazard to psychological safety and one that organisations have a duty to eliminate or minimise if it poses risk. The Occupational Health and Safety Act 2004 (Vic) makes clear that a reference to health includes psychological health: section 5. As such, duties under the act extend beyond physical health. What this means is that employers must, so far as is reasonably practicable, maintain a safe working environment without risks to psychological health. Bullying is also defined under section 789FD of the Fair Work Amendment Act 2013 (Cth) as when an individual or group of individuals repeatedly behaves unreasonably towards a worker and that behaviour creates a risk to health and safety.

Despite the legislation protecting employees, the IBA Report found as many as 57 per cent of respondents who had been bullied did not report it, mostly due to the status and profile of the perpetrator (60 per cent) or fear of repercussions (58 per cent). And for those 76 per cent of respondents who did report the behaviour, they said that the firm’s response was insufficient or negligible.

Organisations that diminish an employee’s experience of being bullied by passing off complaints, a personality conflict or a performance management issue, shirk their responsibility to manage risk and protect the worker from psychological harm. Whilst there are various considerations at play, allegations of bullying, especially if there is a pattern of repeated behaviour in the workplace, must be addressed, investigated, and if found to be supported, the perpetrator must be sanctioned accordingly. In the IBA Report in 75 per cent of cases however, the perpetrator was not sanctioned.

Psychosocial safety in the workplace is the shared belief held by workers that their psychological safety and wellbeing is protected and supported by senior management. By creating a psychologically safe environment, the risk of psychological and social harm for workers is minimised. This requires genuine commitment and involvement from senior management to prioritise psychological health and address bullying concerns in the workplace. Well-washing with initiatives and programs addressing bullying is not the silver bullet to fix the problem. While education is a key part in reducing the incidence of bullying, if it is the only strategy in place to address the problem, employees will view this as a form of “white-washing” rather than a genuine attempt by senior management to address the concern.

STOP. THINK. REACT.

For each of us there is a personal responsibility to do better. To not act out. Psychologists use the term “acting out” to describe emotions that don’t really get processed at higher levels of reasoning. Rather, our basic primitive emotions are triggered.  At the same time, inside us, emotions are accompanied by the release of hormones that soothe or agitate us, including changes in heart rate and breathing. On the outside, our emotions may manifest through crying, eye-rolling or grimacing for example, and in more complex behaviours like yelling, lashing out or even withdrawing from a situation.

Rather than trying to mask this emotion, one solution is to feel the rage when it rises, acknowledge, and sit with it, not necessarily act on it. If you actively do this, it can then have the chance to work through your system and like any passing emotion, it can dissolve or morph into something more like compassion or empathy.

Learning to sit with the powerful emotions that are triggered through our fight/flight response, without acting out, is key to developing self-regulation. Navigating emotionally charged territory without blaming, raging, or withdrawing can mean the difference between understanding or misunderstanding, in both our personal and professional relationships.

The key is mindful awareness. It helps provide a pause in which we can view things more dispassionately. It helps us respond in a more reflective way that looks after our own interests while, simultaneously, practising empathy. Mindful awareness enhances the ability to take a step back in challenging situations and calmly consider the emotional reactions of both ourselves and others.

When next you feel like you are 30-metre deep in emotion do as divers do: stop. Think. React.

Dr Michelle Sharpe is a Melbourne-based barrister. Desi Vlahos is a mentor and lawyer (PLT) at Leo Cussen Centre for Law.