By Dr Tina Popa, (Senior Lecturer in Law), Dr Christina Platz (Senior Lecturer in Law), Dr Kayleigh Young (Clinical Psychologist) and Dr Kate Jackowski (Forensic Psychologist)

Introduction

Personal injury (PI) disputes are emotionally charged legal processes, as they often involve physical injuries, trauma and psychological distress (Akkermans, 2020). This means that injured claimants can frequently have a desire to have their non-legal needs addressed through acknowledgement and or a desire for an apology (Relis, 2009). Dispute resolution (DR) process, such as mediation, are frequently used to resolve PI claims and have potential to hold numerous advantages over trial (for an overview of DR see Field, 2021). While mediation is promoted as a more human-centric alternative to litigation, recent research reveals that current practices fall short of addressing the emotional needs of claimants (Popa & Douglas, 2019). Lawyers play an integral part in the way mediation is conducted (Rundle, 2009; Douglas & Batagol, 2014). A lawyer’s role in mediation can range from provision of advice before mediation to higher levels of involvement, whereby lawyers may sideline emotions in favour of legal principles, strategy and the desire to attain a favourable fiscal outcome for their client. This blog post synthesises theory with findings from a 2023 empirical interdisciplinary study (combining principles of law and psychology), of Victorian PI lawyers and proposes reform directions to enhance emotional responsiveness in mediation.

Lawyer Perceptions and Emotional Gatekeeping

The 12 Victorian PI lawyers interviewed in the study consistently recognised the emotional toll of PI disputes, noting that clients often suffer from depression, anxiety, and post-traumatic stress. One participant described clients as “unhappy from two different perspectives. First of all, the pain… chronic pain, need to take medication… The other thing is the process… you get treated like a number without any dignity.” (Interview with Anderson). However, lawyers’ professional roles limit emotional engagement. As Bennett noted, “most clients have got plenty of people to sympathise with them. What they need from you is to do your job.”

Consistent with previous studies, the lawyers in this study were extremely cognisant of their clients’ emotional state. They recognised that PI claims have a huge emotional and legal component, and they were attuned to their clients’ non-legal needs (such a desire to have their story told or to feel heard). However, they were assertive in their description that mediation as a process did not cater to the emotional needs of their clients. First, client rarely faced the wrongdoer and defendants were often not present at the mediation and were mostly represented by insurers. Second, they were reluctant to allow their clients to speak because they risked revealing too much and that could jeopardise their legal claim should it proceed to trial. Third, some lawyers were even cognisant of re-traumatising their client, saying they did not need to relive the traumatic event, to protect their client but to also guard their own wellbeing. Lawyers in this study were not only shielding their clients from emotional retraumatising, but they acted as navigators in the legal process. In that sense, they treated mediation as a step in the adversarial process, focusing on the best outcome, legal strategy and financial compensation. 

This strategic orientation reflects broader systemic issues pertaining to legal training that prioritises doctrinal rigour over emotional intelligence. Lawyers thus act as emotional gatekeepers, acknowledging the emotional component of the dispute but rarely addresses it substantively, a finding consistent with previous studies (Relis, 2009; Tumelty, 2021).

Mediation and Procedural Justice

Mediation is often framed as a process with promise to cater to emotional needs, and to allow claimants to tell their story and feel heard (Jones & Bodtker, 2001). This is reflected in non-adversarial approaches to justice, including procedural justice and therapeutic jurisprudence (King et al, 2014). Yet, our study found that lawyers frequently dominate mediation, excluding claimants from direct participation. This undermines procedural justice principles such as voice, neutrality, respect, and trust (Hollander-Blumoff & Tyler, 2011; Tyler, 2007). Emotional narratives are filtered or suppressed, and mediation becomes a vehicle for legal efficiency rather than emotional repair.

As Bennett, a participant in the study reflected, “Clients are pretty much shut out of it, really… plaintiffs rarely get to see the inside of the mediation room.” Even when claimants are present at mediation, their participation is highly structured and limited. Taylor described a practice where clients “prepare something in advance and say what they want to say… usually they talk about the impact on them, and it can be incredibly moving.” While this offers some opportunity for voice, it remains constrained by legal strategy and procedural norms.

Reform Directions

To address these shortcomings, the study proposes several reforms grounded in interdisciplinary scholarship.

• Trauma-Informed Practice

Trauma-informed practice offers a framework for creating emotionally safe mediation environments. Lawyers (and mediators) should receive training in psychological principles to better manage trauma and distress (Katz & Haldar, 2016).

• Legal Education Reform

Legal education must expand to include emotional intelligence, reflective practice, and client-centred communication. While ADR is now embedded in the Priestley 11 curriculum, the teaching of these competencies remains limited and often elective (Douglas & Akin Ojelabi, 2024). Making them compulsory would better prepare future lawyers to engage with the emotional realities of PI claims.

• Professional Supervision

Professional supervision, modelled on psychological practice, could support lawyers in managing the emotional complexities of their work. The Psychology Board of Australia’s revised Code of Conduct, effective December 2025, mandates regular self-reflection and peer consultation to manage burnout and enhance client outcomes. A parallel framework in law would provide structured support for lawyers and improve client relationships.

• Legal Design

Legal design principles can be used to reimagine mediation structures that prioritise claimant voice and emotional expression. Human-centred design, which places user experience at the heart of process innovation, offers tools for redesigning mediation to be more accessible, empathetic, and responsive (Hagan, 2020; Toohey et al, 2019).

Conclusion

Personal injury mediation must evolve beyond procedural containment to embrace emotional responsiveness. By embedding psychological insights, educational reform, and human-centred design into legal practice, the profession can better support the wellbeing of injured claimants. These reforms not only improve outcomes for clients but also enhance the integrity and effectiveness of the legal system.

Authors Biography

Dr Tina Popa is a Senior Lecturer in Law at RMIT University. Her research and teaching focus on tort law, health law, psychiatric harm, law and wellbeing, and appropriate dispute resolution. Dr Popa researches legal issues related to medical negligence compensation, no-fault compensation systems, and psychiatric harm, as well as non-adversarial approaches to justice in tort and health law. With postgraduate qualifications in psychology, she is developing a research focus at the intersection of law, psychology, and wellbeing in the legal profession.

Dr Christina Platz is a Senior Lecturer at the School of Law, RMIT University. Dr Platz is an NMAS/ AMDRAS-accredited practicing mediator. Her teaching and research focus intellectual property with emphasis on copyright law and technology as well as appropriate dispute resolution and emotion in conflict. Her research has been published in leading international and Australian journals including the European Intellectual Property Review as well as Psychiatry, Psychology and Law and has presented her scholarly work at national and international conferences.

Dr Kayleigh Young is a Clinical Psychologist and Board-accredited supervisor with extensive experience across clinical, forensic, and organisational settings. She has delivered assessment, therapeutic intervention, supervision, and workplace services for a wide range of organisations. Kayleigh specialises in strengthening organisational capability through evidence-based wellbeing initiatives, employee assistance services, critical incident support, training, leadership coaching, and peer support programs. Her work focuses on creating psychologically safe workplaces that enhance wellbeing, engagement, and performance. Passionate about mental health and education, Kayleigh—alongside Workplace Conversations co-founder Dr Kate Jackowski—design and deliver tailored, interactive training across industries, with a particular interest in wellbeing in the legal profession

Dr Kate Jackowski is a registered Forensic Psychologist with expertise at the intersection of psychology, criminology, and the law. She specialises in staff wellbeing, psychological safety, and the impacts of stress in high-pressure environments. Her experience across high-risk settings, together with her doctoral research, has shaped her focus on wellbeing, self-care, and career longevity, offering unique insight into legal and other demanding workplaces. Skilled in facilitating evidence-based, engaging, and psychologically safe group conversations, Kate—together with Workplace Conversations co-founder Dr Kayleigh Young—delivers tailored programs that build wellbeing, resilience, and team performance. Their practical, preventative approach supports organisations to navigate psychosocial risks and foster teams capable of thriving in emotionally intensive environments.