,Mediating historical child sexual abuse (“CSA”) claims requires a highly sensitive, trauma-informed approach. These cases are uniquely complex, often involving deeply entrenched power imbalances, significant emotional distress, and the need for more than just financial redress. Whether representing claimants or institutions, legal professionals play a crucial role in ensuring that mediation is conducted effectively, fairly, and with the appropriate level of care.
A poorly handled mediation can result in unnecessary distress, loss of trust in the process, and even failed resolution. Below are some of the most common mistakes that can undermine the mediation of historical CSA claims, along with considerations for avoiding them.
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Insufficient Trauma Awareness
Many claimants in CSA cases have experienced significant psychological harm, which may manifest in various ways during mediation. Common trauma responses include dissociation, heightened anxiety, emotional withdrawal, or even difficulty articulating their experiences.
A common mistake is interpreting these trauma responses as unwillingness to engage or as a negotiating tactic. Instead, a trauma-informed approach acknowledges these responses and ensures mediation proceeds at a safe and manageable pace for the claimant. We wrote more about the role of emotions in conflict resolution here.
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Overemphasis on Legal and Financial Aspects
While mediation aims to achieve a legal resolution, claimants often seek more than just financial compensation. Many want acknowledgment, validation, and a sense that their experiences are being taken seriously. A mediation focusing solely on financial settlements without considering the broader context of justice and healing can leave claimants feeling unheard and dissatisfied.
Of course, adopting a trauma-informed approach doesn’t mean that a defendant (individual or institution) cannot rely upon the legal arguments available to them. Almost all institutions responding to historical CSA claims are deeply saddened that CSA occurred in their institutions’ past. However, institutions often face financial constraints, insurance, and regulatory and reputational issues. A skilled mediator must balance these interests while facilitating a resolution sensitive to the claimant’s trauma and needs.
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Mishandling Apologies and Acknowledgments
For many claimants, an apology or acknowledgment of wrongdoing is as significant as financial compensation. Most institutions provide genuine and deeply impactful apologies. However, when other issues mean a respondent cannot offer monetary compensation in a range the plaintiff will realistically anticipate, consideration should be given to the content of the direct personal response and the timing of its delivery. Apologies that feel scripted, defensive, or overly legalistic will likely have a diminished impact.
Apologies should be genuine and thoughtfully delivered without attempting to minimize or shift responsibility. When done well, they can be a powerful component of resolution. Mediators should carefully facilitate discussions around apologies, ensuring both parties understand their significance and impact.
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Failure to Address Power Imbalances
Historical CSA claims often involve institutions with significant financial and legal resources against individuals who may feel powerless. A skilled mediator will recognise and mitigate this imbalance if a claimant is navigating the process alone or with minimal support (while experienced legal teams represent the institution).
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Inadequate Preparation of Claimants
Many claimants enter mediation without fully understanding the process or its potential outcomes. They may feel overwhelmed without proper preparation, leading to disengagement or regret over settlement agreements.
Claimants should be supported in understanding the process, what is negotiable, and the possible outcomes. This includes setting realistic expectations about compensation, institutional responses, and potential non-monetary outcomes such as ongoing psychological support or changes in institutional policies.
A skilled mediator will provide a claimant with an overview of the mediation process. However, the claimant’s preparation should commence long before the mediation to ensure that expectations are managed and they can confidently approach it.
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Lack of Support Systems
Mediation can be emotionally taxing for claimants, potentially triggering trauma responses. Claimants may struggle to engage effectively without adequate psychological and emotional support.
A well-structured mediation should ensure that claimants have access to trauma-informed support before, during, and after mediation. Something as simple as handling travel arrangements to get a claimant to the mediation can minimise the potential for re-traumatisation.
Legal representatives should also be aware of their limitations in providing emotional support and encourage claimants to access external support services. A legal representative is not a counsellor or mental health professional. Many claimants need expert assistance to manage the emotional issues that arise during the legal process. Similarly, legal representatives need to be aware of the risks of compassion fatigue and vicarious trauma and have systems in place to minimise those risks.
- Rigid or Inflexible Mediation Structures
Historical CSA mediations require a flexible approach. Applying a standard commercial mediation model can be a mistake, as it may not account for the emotional and psychological needs of the claimant.
Mediators should be open to adjusting the process—this may include using shuttle mediation, allowing support persons to be present, providing additional breaks, or even conducting mediation remotely if face-to-face engagement is too distressing for the claimant.
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Rushing the Process
Pressure to resolve cases quickly—whether due to financial, legal, or institutional reasons—can lead to rushed agreements that do not adequately serve either party. Claimants may later regret settlements if they feel they were not given enough time to process information or consider their options.
Allowing adequate time for reflection and decision-making is critical. Mediators should be mindful of pacing and ensure that all parties are comfortable with the progression of discussions.
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Ignoring Cultural and Contextual Factors
Historical CSA claims often involve diverse claimants with unique backgrounds and cultural considerations. For example, Indigenous claimants may have experienced abuse in the context of broader systemic harm, while survivors of religious institutions may have additional layers of trauma linked to their faith.
Failure to recognise and respect these contextual factors can make claimants feel misunderstood or marginalized. A culturally sensitive approach, which includes engaging with claimants’ specific needs and histories, is essential in achieving a fair and meaningful outcome.
Conclusion
Mediating historical child sexual abuse claims requires careful navigation of legal, emotional, and institutional complexities. Legal professionals and mediators must approach these cases with sensitivity, flexibility, and a deep understanding of trauma-informed principles.
By avoiding these common mistakes and prioritising a fair, compassionate, and trauma-informed process, mediation can provide a meaningful pathway to a resolution that acknowledges harm, supports healing, and upholds justice for all parties.
Feel free to reach out for more information on trauma-informed mediation practices or to discuss how to approach these claims effectively.