The Global Landscape of Judicial Well-being: A Roundtable Discussion

The following is an excerpt of a recent roundtable conversation Judicature International between Judge Jeremy Fogel, retired federal judge and executive director of the Berkeley Judicial Institute; three drafters of the Nauru Declaration — Justice Rangajeeva Wimalasena, president of the Nauru Court of Appeal, Justice Lynne Leitch, superior court judge, Canada, and president of the Commonwealth Magistrates’ and Judges’ Association, and Carly Schrever, director of Human Ethos — in which they discuss the genesis and surrounding context of the Nauru Declaration.

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JEREMY FOGEL: Thank you all so much for speaking with me today about the Nauru Declaration and judicial wellness more broadly. For the uninitiated, Rangajeeva, can you explain what led to the declaration?

RANGAJEEVA WIMALASENA: In 2014, I was the secretary of the Judicial Services Association in Sri Lanka. By that time, I had seen how judicial stress could affect judges, so I drafted an action plan, trying to promote collegiality and also to involve judges in the performing arts to promote a balanced mind — to enhance their other facilities so we can assist them in maintaining a balanced mind. At that time, I was not aware of the terms “judicial well-being” or “judicial wellness,” so that’s why I used the term “balanced mind.” At that time, I thought stress was primarily due to lack of infrastructure and other facilities in the developing world.

But fast forward to 2020 when I moved to Australia, and after hearing a radio interview with Dr. Carly Schrever on judicial stress, I began to realize this issue is not limited only to developing countries or the countries with less facilities. After reading the reports of judicial well-being studies, I realized this is a universal problem.

I spent a while thinking about what we could do. Later, I got in touch with Marie Cauchois, the regional anti-corruption advisor of the United Nations Office on Drugs and Crime (UNODC). When I pitched this idea, they agreed to come onboard and support it. I slowly reached out to judges across the world who were known to me as well as through other contacts. We were able to gather about 18 judges and other stakeholders from Canada to Ukraine to the Caribbean, Singapore, and other parts of the world. Alongside judges, we contacted Dr. Schrever, one of the pioneering experts in this field, as well as some experts from the UNODC.

Over several months, we analyzed studies conducted across various jurisdictions, including Australia, the United States, and the United Kingdom, and the judicial well-being study conducted by the UNODC. We came up with these seven principles. It was a long process.

Last year, on 25 July, we successfully adopted the Declaration. But I felt that adopting a declaration alone wasn’t enough — we needed to build momentum and raise global awareness. So I proposed to the government of Nauru that they consider tabling a resolution at the United Nations. As a result, a resolution was submitted to the UN General Assembly, and with 160 votes in favor and 70 co-sponsors, 25 July was declared the International Day for Judicial Well-being.

FOGEL: That’s a great story. It’s a great statement to the world that this is an important subject, and it’s truly cross-cultural. It affects countries all over the world.

Lynne, the UN has made a lot of statements, such as the Bangalore principles and various other things that guide courts around the world. How does the Nauru Declaration fit into that framework?

LYNNE C. LEITCH: One of the elements of the Bangalore principles of judicial conduct is a generalized statement that judges should have sufficient time to permit the maintenance of physical and mental well-being. Acknowledgement of the stress of fulfilling judicial duties is increasing. Because of that principle, and the fact that there were a lot of increasing concerns about the difficulties of judging around the globe that came into focus because of the pandemic, the advisory board of the Global Judicial Integrity Network suggested that the network investigate this aspect of judicial well-being.

As a result, UNODC undertook a global survey. I think it was really an alignment of stars, if you will, that while this survey was being done, Rangajeeva was percolating interest in this in the way that he can do so effectively, engaging Carly and the UN, and speaking to lots of other people. Rangajeeva did a remarkable job in keeping this diverse group together. As we all know, it’s not easy drafting by committee. I am quite happy with how we were able to synthesize all our discussions.

That was a considerable challenge because when we first started out, we had a lot to say. We had almost too much information, too many observations, and too many expressions and perspectives. We distilled it down to these seven principles that encapsulate many of the concerns. But we had a tremendous leader in Rangajeeva, and those of us who worked on drafting it signed it. I signed it on behalf of the Commonwealth Magistrates’ and Judges’ Association. Then of course, Carly’s expertise assisted us with some of the language that we used, which was exceedingly helpful.

That was a long answer to your short question, but it dovetails nicely with the Bangalore principles. I think it’s really adding some meat on the bones, if you will, to that principle.

FOGEL: I have two reactions to what you said, and one is that you’re dealing with such diversity. You’re dealing with well-developed countries like Canada, which have an abundance of resources, and you’re dealing with places like Sri Lanka, which I know just from having worked with people from there, is a very different situation. Being able to come up with a definition and a set of principles that crosses those boundaries to which everyone says, “Yeah, this is us, this is something we really agree to,” that’s really quite remarkable.

The other observation is that when I started talking about judicial wellness 30 years ago, people said, “Well, okay, wellness is what you do privately. It’s your own private business. It’s like you’re taking care of yourself and your own, but what’s it got to do with judging?” I think what has become clear, and Carly, I’m going to turn to you and ask you about this, but it’s that the quality of judging is inseparable from the wellness of the judges.

Ultimately, you have to pay attention to what shape the judges are in, but it’s been a long time getting to that realization. It’s really been a hard sell to get the judicial community to realize that actually you need to be at least somewhat healthy — mentally and psychologically — in order to do the job. So please say more about that, and I think we can play out some of those implications.

CARLY SCHREVER: I completely agree that in order to do the intellectually demanding, often emotionally intense work of judging, judges need for the most part to be feeling well and feeling that they’re able to manage their stress. This sits alongside the inevitability that judges will experience stress in the workplace. The work is inherently incredibly demanding. Having worked with judges on judicial well-being now for more than 10 years all over the world, I know that all judges experience stress. That is normal. The conversation has these two parts, where we need to be able to normalize the experience of stress so that we can talk about it, and then we need to think as individuals, but also collectively as institutions, how we can support judges to manage their stress to the best of their ability to be able to fulfill their judicial functions effectively.

We know from decades of psychological research — not just with judges — that stress undermines key human faculties required for good decision-making. It undermines our objectivity and critical thinking, making it more likely that decisions will be infused with unconscious biases or heuristics.

Also, stress undermines our human capacities for emotion regulation and impulse control, making it more likely that we’ll behave in ways that we later regret on the bench. We know this from human psychology. Therefore, it’s really important that we address the issue of judicial stress, but we don’t want to stigmatize it because it’s a natural human response to the incredible demands of judicial work. We want to acknowledge it, normalize it so we can talk about it, and therefore deal with it appropriately.

FOGEL: One of the challenges that judiciaries around the world are experiencing is maintaining public trust and confidence. There’s a tremendous amount of cynicism about courts and people being concerned they’re not really getting fair adjudication of their cases. How does this effort contribute to trying to address that problem?

LEITCH: I look at it as a question of ensuring that judges have the capacity to fulfill their important public responsibilities. We’re not the only people who have to do this, but when I think about what a judge’s responsibilities are, I think about the fact that we become quite intimately involved in people’s problems, their experiences, sometimes their traumas. We’re dealing with — as I say to a jury — human dynamics, and we’re addressing human behaviors. We do all of that in real time and in the public domain. That inherently is extremely stressful. On top of that, our decisions really matter. We’re impacting people’s lives.

I think we must be careful in addressing these problems. It’s not just simply workload, but, of course, workload is a factor. It’s other things like security issues. It’s also timeliness of assignments and the timely receipt of materials to be prepared the way we need to be. Judicial well-being is not just a simple matter of saying, “Well, fewer cases, more judges.” It’s not about that.

My experience has been that those who receive the appointment and privilege of being a judge are people who take their public responsibilities seriously, and they want to perform their job well. I think one of the reasons this is coming a bit to a head right now is because the circumstances in which we work are becoming more challenging. Capacity demands are increasing, and because the resources are not increasing, the demands on us are increasing along with the other problems that I mentioned.

As you’ve said, public confidence and trust in the judicial system are essential to our societies. They’re very fragile. We must work hard to preserve and maintain that confidence, and that’s why it behooves the institutions to ensure that is accomplished.

FOGEL: When I was a young judge and trying to get people to speak about judicial well-being, they usually said, “No, get out of here. We don’t want to talk about that. This is not really appropriate.” There was that taboo, and it has gotten better. It’s really interesting that when you do surveys where people can actually say what they’re feeling, 90 percent of the people say, “This is important, but we don’t get to talk about it because there’s this element in the culture that doesn’t buy into it.” And that leads me to my next question: What are some strategies for addressing that problem of resistance?

SCHREVER: I’ve given a lot of thought to this because a big part of my work is going into new jurisdictions to get the conversation started. I think we need to acknowledge that the topic is historically taboo and remains somewhat sensitive for some good reasons. There’s a concern that admitting stress might imply admitting some impairment, and that this could have a detrimental impact on public confidence in the courts. I think that’s a fair concern. Also, legal work is adversarial and combative, and by the time lawyers become judges, they’ve spent many years needing to hide their vulnerability from opponents and clients.

Thus, it’s baked into legal culture in a particular way. I think once we acknowledge that there is this sensitivity for some good reasons, then we can start to bring in some facts from psychology that can temper that a little bit.

The equation of stress with impairment is actually an erroneous equation in psychology. Stress doesn’t necessarily equal impairment. It’s when stress goes unacknowledged and unmanaged that it has the potential to be most problematic, and, of course, stress is most likely to go unacknowledged and unmanaged in a culture of stigma and silence. We need to be able to have a conversation, at least among ourselves as judges, to break down the stigma so that stress can be managed, acknowledged, and therefore not lead to impairment.

Another way is to bring in some information from psychology about what stress is. Stress isn’t all bad. There’s healthy stress. Stress can be used to galvanize our energy and our attention. Judicial work is inherently stressful. We can’t make it stress-free. But when stress gets to the point that it leads to distress, that’s not good for the judge’s personal experience. It’s also not good for the experience of the people in the courtroom or potentially for their decision-making. When we can have a nuanced conversation about the sensitivities around this topic, then I think it helps overcome some of that natural resistance that some judges can have around it. In addition to that, we’ve got increasing empirical data on the nature, prevalence, and severity of stress within the judiciary. We know it’s extremely common.

FOGEL: The anonymous surveys are stunning. Huge majorities of people talk about it.

SCHREVER: Absolutely. The majority experience is some degree of distress on a regular basis. A significant proportion of respondents experience high levels of secondary trauma and burnout. It’s not just a tiny minority. It’s the majority. I think that’s important for people to understand as well.

WIMALASENA: That’s why I think we made the second principle say that judicial stress is not a weakness.

LEITCH: I think something that will assist the judiciary in moving forward in these efforts is that the legal profession itself is addressing it. Many — the Canadian Bar Association, perhaps the American Bar Association — are trying to focus on this concept and to destigmatize it and make people more aware. I think changes within society generally, but more importantly within the legal profession, are going to be quite pivotal in getting courts to address this.

FOGEL: Any thoughts about how to increase the awareness of judicial leaders?

LEITCH: Even when needed initiatives are undertaken or new resources are added, sometimes there’s not an adequate analysis as to the impact of that initiative or new resource on a judge’s workload. This should be taken into consideration as a factor in how leaders are going to add those resources. Look at how they could be best rolled out and implemented to minimize the potential negative impact on those using them.

SCHREVER: I think we also need to acknowledge at the start that being a judicial leader has got to be one of the most challenging leadership roles out there for so many reasons. Judicial leaders don’t have the same levers of control as, for instance, CEOs in other organizations, which are also challenging roles and probably very stressful.

One of the best examples I’ve seen in a large court in Australia is not only the establishment of a judicial well-being committee, which is now becoming pretty commonplace in many parts of the world, but also creating the role of a supervising magistrate or judge for judicial well-being. That supervisor sits across other governance structures within the court to bring a well-being lens to all the decision-making in other areas of the court — on the IT committee, the assignments committee, etc. — to make sure that well-being implications are considered with any significant change, improvement, or intervention being brought into the court.

FOGEL: That seems like a great initiative and one that we must follow up on. I just want to say, as somebody who wasn’t involved in the creation of the Nauru Declaration, what a great thing you all did. Thank you all very much.

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JEREMY FOGEL is executive director of Berkeley Judicial Institute, former Federal Judicial Center director, and former U.S. district judge.

RANGAJEEVA WIMALASENA is the president of the Nauru Court of Appeal and an adjunct professor at Australian Catholic University.

LYNNE LEITCH has been a Superior Court of Ontario judge since 1992. She is president of the Commonwealth Magistrates’ and Judges’ Association.

CARLY SCHREVER is a lawyer, psychologist, empirical researcher, and director of Human Ethos.