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| Ellie Vilendrer |
Five years ago, California opened the door for adult survivors of childhood sexual abuse to have their day in court.
The California Child Victims Act, which took effect in 2020, extended the statute of limitations and provided a three-year window for victims of childhood sexual abuse to come forward.[1] And come forward they did. Adult survivors of abuse at the hands of teachers, camp counselors, priests and other authority figures began filing lawsuits.
In San Diego County alone, more than 100 lawsuits allege sexual abuse of minors at juvenile facilities.[2] Former detainees claim that they were subjected to sexual, physical and emotional abuse at the AB and Jessie Polinsky Children's Center, East Mesa Juvenile Detention Facility, the now-shuttered Camp Barrett, and the Kearny Mesa Juvenile Detention Facility.
The San Diego County lawsuits may be just the tip of the iceberg. On Aug. 15, a sexual abuse lawsuit, K.A.S. v. Los Angeles Unified School District, was filed against Wish Academy High School in Los Angeles County Superior Court.[3] This comes on the heels of an April agreement by Los Angeles County to settle nearly 7,000 sexual abuse claims dating back to 1959 for $4 billion.[4]
Extrapolate those claims across the state, and it is easy to see how unmanageable litigating these childhood abuse cases may become. And sexual abuse claims don't stop with childhood incidents. Sexual abuse claims will continue to be filed in California and across the country by co-workers, college students, girlfriends, spouses and others.
San Diego and other counties appear to be frequently opting to settle childhood abuse claims instead of litigating them in court. Parties in other sexual abuse cases may follow suit. For survivors, the arduous process of awaiting trial dates on packed court calendars, tracking down witnesses, testifying before juries, and putting private abuse into the public record may be too painful and disruptive.
Indeed, for survivors of sexual abuse, trying to find justice through the legal system can feel like undergoing abuse all over again. Reliving trauma, answering openly hostile questions and revisiting deeply personal pain can be excruciating. The legal professionals who interact with abuse survivors should have special training and skills, as well as ample empathy, to do this highly sensitive kind of work.[5]
Mediation offers one approach to resolving these matters. But unless the mediator has been properly trained to work with survivors of sexual abuse, the survivors may be harmed rather than helped.
Sexual abuse mediation is unlike any other type of mediation because of the extremely sensitive nature of the trauma that lies at the heart of the dispute. It is important that mediators understand the issues that are unique to these cases and develop the tools and skills required to successfully resolve them.
Sexual Trauma
Trauma can have a profound impact on nearly every aspect of a person's life. Common symptoms that emerge in the aftermath of childhood sexual abuse include anxiety, depression, intrusive thoughts, flashbacks, nightmares, and sleep and eating disturbances.
The harm caused by sexual trauma is not confined to psychological distress. It can, and often does, manifest in physical health issues across nearly all bodily systems — cardiovascular, endocrine, immune, gastrointestinal, neurological, respiratory, musculoskeletal and reproductive — as well as in the development of chronic diseases.[6] Childhood sexual abuse is also linked to poor academic performance and school dropout, criminal behavior, risky sexual behavior, and early pregnancy.[7]
Survivors of sexual abuse — especially those who were abused as children by persons in positions of trust — often have unresolved trauma that translates into lifetime patterns of fear and lack of trust. They may have long-term difficulties with emotional regulation and stress management, as well as chronic feelings of helplessness.[8] All of this can affect how they see themselves, and how they relate to others and the outside world.
Trauma-Informed Training
Abuse survivors share with mediators stories that are incredibly painful. The mediator may be the first person, other than their attorney, with whom they've shared their story, and what they share may be more emotionally laden than what they have previously discussed. A mediator entrusted with such private and sensitive stories — especially where so much is at stake — assumes a profound responsibility.
It is not enough that mediators handling sexual abuse matters have mediation training. To responsibly mediate these cases, mediators must be trauma-informed. In other words, mediators must be educated on the effects of trauma in general, and sexual abuse in particular.
They must understand and reduce the risk of retraumatization; be mindful of triggers, e.g., smells, spaces, touch and authority dynamics; and ensure that survivors are treated with dignity, respect and care.
Like the Hippocratic oath that physicians take, mediators of sexual abuse cases must take measures to prevent harm. Abuse may have left survivors with long-term mental health conditions. They may exhibit risk-taking behaviors, engage in self-castigation or self-harm, abuse substances, or consider suicide. The worst thing mediation can do is aggravate those tendencies.
The following trauma-informed strategies can help mediators create a safe, transparent and empowering process that minimizes the risk of retraumatization. By fostering trust, choice and collaboration, mediators enable parties to engage more meaningfully and reach more valuable resolutions.
1. Do good.
The goal of mediating a sexual abuse case should ultimately be to do good. Survivors should be able to leave the mediation process with more than just a legal resolution. They should feel that they were heard, understood and respected. Moreover, mediation provides an opportunity for the mediator to leave a lasting positive impact.
Mediators hold a unique position of influence. Their actions and words can carry more weight with participants than the attorneys who represent them. A mediator should develop a sense of what a particular survivor is most likely to benefit from hearing so the survivor walks away with a lift to their spirits and their self-esteem.
Although mediators are ostensibly neutrals, they are also advocates when working with survivors of sexual abuse. They must make victims' interests and well-being a priority, and do whatever they can to help claimants begin the healing process and move on with their lives.
2. Create a safe and trustworthy environment.
From even before the first meeting with the survivor, the mediator should be working to create a safe and trustworthy environment. Holding premediation calls with the attorneys is a valuable way to identify needs and concerns, inform the process architecture, and eliminate surprises.
Mediators should come into the process with a clear sense of the end goal and a sense of inner calm, which starts with becoming psychologically ready to receive painful and provocative material. Before the process begins, mediators may take steps to center themselves: slow deep breathing, mindfulness exercises, gentle movement or praying. When the process starts, a slow, low tone of voice can bring calm to the mediation space, decreasing everyone's heart rates and helping bring down stress levels.
The mediator should be warm and gracious and take time to build rapport. They can help survivors by giving them enough time to adjust to the mediation setting, describing the process, inviting questions and explaining that breaks can be taken at any time. Abuse survivors also do best when they are permitted to have a support person present, who can provide a sense of safety, stability and empowerment in a stressful process.
In addition, survivors should be asked open-ended, rather than closed, questions, and made to feel that they are welcome and cared for. Mediators can earn survivors' trust by showing that they truly care about them and their cases, are prepared to help find a resolution, and will not ask for details that have already been provided.
As the process moves forward, gently introducing sensitive topics, keeping survivors informed, and giving them control over their own voices and choices will help them feel respected and in control.
Survivors may present with deep feelings of insecurity, low self-esteem, poor frustration tolerance and sensitivity to criticism. Psychological harm can manifest in heightened anxiety, dissociation or emotional shifts, and they may be hyperaroused — prone to agitation — or hypoaroused and emotionally numb. Mediators must know how to respond to distress in a supportive way, deescalate hyperarousal or engage a survivor who is hypoaroused, and recognize when to call time out or change a dynamic that is not working.
When a participant becomes distressed, a mediator can respond supportively by normalizing the reaction, saying something like, "Many people have strong emotional reactions in this process — it's completely understandable." They can then offer the survivor a choice: "Would you like a short break, or would you prefer to continue?"
The mediator can also encourage grounding if the person is overwhelmed, saying something like, "Take a slow breath with me. You're here now, and you're safe."
3. Listen.
Mediation may be the survivor's only day in court — a day they may have been waiting decades for. Mediators should listen attentively — giving survivors uninterrupted time and latitude to talk at whatever level of detail and in whatever order they are comfortable.
A trauma-informed approach recognizes how trauma affects memory, emotion and behavior. There is an expectation that important things will be remembered, but what actually gets remembered in a hyperaroused state is often what the survivor focused on during the incident. This may be the way an abuser smelled or what someone was wearing, but not when or where the trauma occurred.
In essence, hyperarousal can act like a spotlight, illuminating the memory of some aspects of an experience while dimming the memory of other aspects. Survivors may therefore struggle to recall events in a linear way or have difficulty articulating their experiences.[9]
A survivor's presentation of intensely remembered details and lost context can seem inconsistent to legal professionals who are unfamiliar with trauma dynamics. When the mediator is prepared to hear whatever the survivor wishes to share, that survivor is more likely to feel heard and not judged.
4. Empathize and empower.
A mediator should be empathetic, not sympathetic. University of Houston researcher Brené Brown explains that "[e]mpathy fuels connection," while "[s]ympathy drives disconnection."[10] Sympathy is looking at someone's pain from the outside; empathy is feeling what the other person is feeling.
In her 2012 book "I Thought It Was Just Me (But It Isn't)," Brown cites nursing scholar Theresa Wiseman's four attributes of empathy: (1) being able to see the world as others see it, (2) being nonjudgmental, (3) understanding another person's feelings and (4) communicating our understanding of the other person's feelings.[11]
These are general attributes for empathy, but trauma-informed mediators should recognize that they cannot know how much a survivor is suffering — some injuries are invisible. Thus, the mediator in a sexual abuse case should never say, "I know what you are feeling." Instead, they might say, "I am so sorry for what you have been through. It sounds like you are in a hard place now. Tell me more about it."[12]
Mediators should look for opportunities to empower the survivor. Childhood sexual abuse may leave the child and emerging adult with a sense of being deeply flawed and damaged as a human being.[13] The mediator should be prepared to thoughtfully respond if a survivor expresses deep shame about common symptoms or feelings.
For example, the mediator might say something like:
- "What you're feeling is something many survivors share — you are not alone in this;"
- "No child is ever to blame for the actions of an adult;" or
- "Nothing about what happened was your fault."
A mediator should develop a sense of what a particular participant is most likely to benefit from hearing. Being trauma-informed allows the mediator to normalize, validate and reduce shame so the survivor can engage in the process with a sense of greater safety and self-worth.
It takes a lot of courage and strength for a survivor to share their story. It is appropriate for the mediator to acknowledge that and express appreciation for the survivor's participation. Ideally, a thoughtful process and empowering dialogue will help the survivor leave with something far more valuable than just a legal settlement.
Conclusion
Mediation can be emotionally taxing for any claimant, but especially so for abuse survivors who may also be dealing with unresolved memories and their attendant feelings of fear, shame, rage and grief. The process can be a deeply emotional experience for survivors, with the risk that they will decompensate, triggering further trauma responses.
Survivors' trust issues may extend to the mediation process, as well as to the mediator. Mediators therefore need to understand this and know how to respond when confronted with the trauma of a survivor.
A trauma-informed practice can facilitate feelings of trust, safety and empowerment. A mediator's role is to resolve disputes, but it is also much deeper. It should be rooted in humanity, grace and compassion.
Ellie K. Vilendrer is a mediator and arbitrator at Signature Resolution. She is also the vice chair of the American Bar Association Dispute Resolution Section, and a board member of the California Dispute Resolution Council.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Assembly Bill 218, https://legiscan.com/CA/text/AB218/id/2056946.
[2] https://www.sandiegouniontribune.com/2025/02/16/swept-under-the-rug-dozens-say-they-were-sexually-abused-by-officers-in-juvenile-detention/; https://www.levylaw.com/polinsky-childrens-center-sex-abuse-lawsuits/#:~:text=In%20October%202024%2C%20over%20100,mid%201990s%20through%20the%202000s.
[3] K. A. S. vs Los Angeles Unified School District et al. (case number 25STCV24028); https://www.lawsuit-information-center.com/california-sexual-abuse-lawsuits-and-settlements.html.
[4] https://www.bbc.com/news/articles/clyqe9e6gjeo.
[5] The challenge is even greater when victims suffered their abuse as children. Memories may have been repressed for years or decades. Reopening those wounds can re-activate painful memories and feelings, as well as provoke the resurgence of previously dormant symptoms and/or activate new ones. This can cause destabilization, and in some cases, decompensation and self-destructive behavior. The wrong words or process can bring a tenuous house of cards crashing down.
[6] https://cthc.ucsf.edu/why-trauma/#:~:text=1.4x%20as%20likely%20to,(IPV)%20during%20their%20lifetime ; https://www.sciencedirect.com/science/article/pii/S0145213421002544?utm_source=chatgpt.com.
[7] https://pmc.ncbi.nlm.nih.gov/articles/PMC9544868/#:~:text=I%20find%20consistent%20evidence%
20suggesting%20that%20childhood,lower%20likelihood%20of%20full%E2%80%90time%20employment%
2C%20and%2013%25%E2%80%9319%25; https://www.guttmacher.org/journals/psrh/2004/
teenage-pregnancy-and-associated-risk-behaviors-among-sexually-abused?utm; https://www.sciencedirect.com/science/article/abs/pii/S1359178917304111.
[8] https://www.ncbi.nlm.nih.gov/books/NBK207191/?utm.
[9] Asking a survivor to provide an exact timeline of events should be avoided as it may increase confusion.
[10] https://www.google.com/search?q=brene+brown+going+into+cave+empathy&oq=brene+brown+going+into+cave+
empathy&gs_lcrp=EgZjaHJvbWUyBggAEEUYOTIHCAEQIRigATIHCAIQIRigATIHCAMQIRigATIHCA
QQIRigATIHCAUQIRigATIHCAYQIRifBTIHCAcQIRifBTIHCAgQIRifBTIHCAkQIRifBdIBCDYxN
zlqMGo3qAIAsAIA&sourceid=chrome&ie=UTF-8#fpstate=ive&vld=cid:073e3209,vid:1Evwgu369Jw,st:0.
[11] https://brenebrown.com/book/i-thought-it-was-just-me/.
[12] https://www.psychologytoday.com/us/blog/partnering-in-mental-health/201408/bren-brown-empathy-vs-sympathy-0.
[13] https://pmc.ncbi.nlm.nih.gov/articles/PMC9554283/.