Introduction: Preparation as Protection
In mediations involving allegations of sexual misconduct and/or abuse (collectively referred to in this article as “sexual assault”), the process itself can either promote healing or inflict further harm. These matters demand a level of preparation and intentional process design that extends well beyond what most mediators encounter in commercial, employment, or other civil disputes. Long before anyone enters a conference room or logs onto a virtual mediation, the mediator’s preparation helps determine whether participants will experience the process as fair, respectful, and predictable.
Fairness in these mediations requires more than neutrality. It requires a carefully designed process that meets participants where they are while preserving the mediator’s impartial role. The individuals involved often arrive with vastly different experiences, expectations, and levels of familiarity with the legal system. A survivor may be entering a formal legal process for the first time. A defendant may be confronting allegations with profound legal, financial, and reputational consequences. Counsel may have handled dozens of similar mediations or none. Preparing each participant for the process, rather than assuming everyone enters with the same understanding, is one of the mediator’s most important responsibilities.
When I began handling these mediations, I quickly realized that the traditional pre-mediation checklist (including, but not limited to, exchange of briefs, scheduling, and joint sessions) was inadequate. What mattered most was not just what would be discussed, but how participants would experience the process. Preparation became more than administrative planning; it became the first step in creating an environment where meaningful dialogue could occur.
Before going further, it is important to acknowledge an essential principle: the mediator’s role is, and must remain, neutral. A trauma-informed approach is not inconsistent with neutrality. Rather, it recognizes that participants experience conflict differently and that mediators are most effective when they adapt their communication style without compromising their impartiality. Mediators are more effective, the process is more efficient, and all parties are better served when a mediator adjusts their approach in each room to best address the uniqueness of each participant best. Keep in mind, a mediator approaches the insurance representative who handles mediations daily differently than the general counsel at a Fortune 100 company, a plaintiff’s lawyer who has represented thousands of similarly situated clients, defense counsel, the defendant facing allegations from the party that sits in a room as a survivor of sexual assault, and a novice to mediation conference rooms where deals are often struck.
Throughout my work, I have found that successful preparation consistently centers on the same core considerations. It begins with establishing trust before the mediation ever starts. It continues through thoughtful attention to tone, logistics, participant choice, financial realities, and realistic expectations. Finally, it requires mediators to prepare themselves, to remain steady, empathetic, and objective throughout a process that is often emotionally demanding for everyone involved.
The discussion that follows is not intended as a rigid checklist. Every mediation is different, and every participant brings unique needs and perspectives. Rather, it offers a practical framework that I have found useful in designing mediation processes that maximize the opportunity for meaningful participation, informed decision-making, and, where possible, resolution.
The Pre-mediation Call: Where Trust Begins
I treat the pre-mediation call as the foundation of the mediation. By the time the parties arrive for the session, whether in person or virtually, important impressions have already formed. The pre-mediation process is the mediator’s first opportunity to build credibility, understand the dynamics driving the dispute, and establish confidence in both the process and the mediator.
Key Preparation Considerations
- Establish trust in the mediator and the process. The first interaction should reassure participants that the mediation will be thoughtful, well organized, and fair.
- Reinforce neutrality. Explain that a trauma-informed approach does not compromise neutrality. Rather, it reflects the mediator’s responsibility to meet participants where they are while maintaining impartiality throughout the process.
- Understand the people behind the dispute. Learn who is driving the litigation, how decisions will be made, and what interpersonal dynamics may affect the mediation.
- Prepare participants for what to expect. Explain the structure of the mediation, answer questions about the process, and reduce uncertainty before the session begins.
- Identify concerns before they become obstacles. Emotional, logistical, or communication issues are often easier to address before the mediation than during it.
One of the challenges in these cases is that efforts to build trust with one participant may be misinterpreted by another. Some defendants, particularly those who categorically deny the allegations, may worry that a trauma-informed approach reflects a preconceived view of the merits. I address this concern directly. In some cases, I speak with defendants before the mediation to explain my approach and the objectives behind it. In others, I explain at the outset that acknowledging the nature of the allegations and preparing participants for a difficult process is entirely consistent with neutrality. My goal is not to validate one party’s position over another, but to create conditions in which everyone can meaningfully participate.
Language is often the natural starting point. I ask how the individual alleging abuse wishes to be identified - survivor, plaintiff, victim, or another term. These preferences reflect identity and agency, and taking the time to ask avoids unnecessary friction later in the process. Although this article uses the term “survivor,” I recognize that terminology is deeply personal and should never be assumed.
I also offer participants from both sides the opportunity to meet with me privately before the mediation, often virtually. Some prefer a brief face-to-face conversation; others choose audio only. These meetings are not intended to discuss the merits of the case. Instead, they allow participants to become familiar with the mediator, ask questions, and develop a greater sense of predictability before the mediation begins.
Many participants in these mediations do not spend their days in conference rooms or legal proceedings. Even highly capable and thoughtful individuals may have little familiarity with the structure or pace of mediation. For many, this process may feel like their “day in court.” I have found that taking the time to explain what will happen, who will be present, and how the day is likely to unfold reduces anxiety and allows participants to focus on the substance of the mediation rather than the uncertainty surrounding it.
Every detail matters. Tone, pacing, and clarity of expectations begin long before the mediation itself. In these cases, predictability is not merely an administrative goal; it is often an important part of creating a process that participants experience as fair, respectful, and manageable.
Tone and Emotional Dynamics
In mediations involving allegations of sexual assault, tone is not incidental to the process; it is part of the process itself. Every interaction, from the mediator’s first conversation with counsel through the final moments of the mediation, communicates something about the fairness and integrity of the process. Participants are often evaluating not only what the mediator says, but how the mediator says it.
For survivors, the mediation may feel unfamiliar, formal, and institutionally driven. For defendants, whether individuals facing serious allegations or institutions confronting significant legal, financial, and reputational exposure, the stakes are equally substantial, albeit in different ways. Each participant enters the process with legitimate concerns that deserve thoughtful attention. The mediator’s role is not to erase those differences, but to create an environment in which each participant feels heard, respected, and able to engage meaningfully.
Key Preparation Considerations
- Model the tone you expect from everyone in the room. Respectful communication begins with the mediator and often influences how counsel and parties interact throughout the day.
- Recognize that empathy and objectivity are complementary, not competing, principles. A trauma-informed approach acknowledges the human realities of the dispute without compromising neutrality.
- Help counsel prepare for the unique dynamics of these mediations. Effective advocacy often depends as much on tone and delivery as on the substance of the arguments themselves.
- Create space for difficult conversations without escalating them. Participants are more likely to remain engaged when they feel respected, even during disagreement.
- Remember that credibility is built through consistency. Participants notice whether the mediator communicates with fairness, transparency, and steadiness throughout the process.
Liability and damages remain central to these mediations, but the framework is different from many commercial disputes. These cases are rarely about persuading the opposing side that a previously unknown fact exists. More often, they require the parties to evaluate accountability, acknowledgment, risk, and valuation within a process that recognizes the emotional realities surrounding the allegations.
For defense counsel, that often means recalibrating advocacy rather than softening it. A trauma-informed approach does not require abandoning vigorous representation or legal rigor. It asks counsel to consider how information is delivered, whether language unnecessarily inflames the discussion, and whether arguments advance the conversation or simply entrench existing positions. Advocating effectively and communicating thoughtfully are not mutually exclusive.
The same principle applies to the mediator. Participants are constantly taking cues from the mediator’s demeanor, pacing, and responses. Remaining calm, measured, and consistent, particularly during emotionally charged moments, helps reinforce confidence in the process. When participants trust that the mediator is listening carefully and treating everyone with respect, they are more likely to remain engaged, even when the conversations themselves are difficult.
Ultimately, tone is not about creating comfort or avoiding difficult discussions. It is about creating conditions in which difficult discussions can occur productively. A mediator’s credibility is reflected not only in the outcome of the mediation, but in the way the process is conducted.
Logistics of Safety
Procedural details that might seem minor in other mediations can take on outsized importance in matters involving allegations of sexual assault. By the time the mediation begins, participants should have a clear sense of what the day will look like and how the physical or virtual environment will operate. Reducing avoidable uncertainty allows everyone to focus more fully on the substance of the mediation.
Key Preparation Considerations
- Explain what the day will look like. Participants should know who will be present, how the mediation will generally unfold, and what they can expect from the physical or virtual environment.
- Address basic comfort needs in advance. Discuss clothing, meals, snacks, breaks, and anything else that may affect a participant’s ability to remain comfortable and engaged throughout what may be a long day.
- Plan physical movement intentionally. For in-person mediations, consider separate waiting areas, restroom access, hallway traffic, and, where appropriate, staggered arrival and departure times.
- Establish clear virtual protocols. Address camera preferences, private communication channels, and breakout-room procedures before the mediation begins.
- Prepare the people supporting the process. Conference-center personnel, law-firm staff, and mediation administrators should understand any special logistical arrangements and the importance of maintaining them.
I tell participants in advance what to expect, including how the day will unfold and who is likely to be present. I also reassure them that they can dress however they feel most comfortable, while letting them know how I will be dressed so that a more formal setting does not come as a surprise. These may seem like small details, but each unanswered question is one more uncertainty a participant carries into the mediation.
I have always believed that no one should go hungry during a mediation; it is bad for decision-making and worse for morale. But in matters involving allegations of sexual assault, attention to food can be particularly important. Survivors of sexual assault experience disordered eating and eating disorders at statistically higher rates, and uncertainty around meals can create unnecessary stress. I make sure participants know in advance when breaks are likely to occur, what food will be available, and whether snacks will be provided. Most importantly, I make clear that everyone is welcome to bring whatever they need to eat or drink throughout the day. Something as ordinary as knowing what will happen at lunchtime can make a long and difficult day feel more predictable and manageable.
Physical logistics deserve the same attention. In an in-person mediation, I work with counsel to consider separate waiting areas, restroom access, and, where appropriate, staggered entry and exit. Depending on the circumstances, I may also coordinate hallway movement, walks, and lunch breaks to minimize unwanted or unnecessary interactions. In a virtual mediation, I address camera preferences, communication channels, and private breakout options in advance. I generally prefer platforms and settings in which participants cannot move themselves between breakout rooms without administrator involvement.
Preparation also extends to the people operating behind the scenes. I spend time preparing conference-center or law-firm staff and mediation administrators because seemingly minor operational mistakes can immediately undermine confidence in the process. A name displayed on a digital board that was intended to remain private, a participant directed to the wrong room, or a virtual attendee placed in the wrong breakout room can undo much of the careful preparation that preceded the mediation. In person, attention should also be paid to sound traveling between rooms and to people congregating in hallways or other shared spaces.
None of these measures determines whether a case will settle. But together they create an environment that feels orderly, respectful, and secure. Thoughtful logistics are not separate from the mediation process; they are part of designing a process in which participants can remain focused on the difficult work the mediation requires.
Joint Sessions: Empowerment Through Choice
Whether to hold a joint session requires thoughtful preparation. In these cases, I do not begin with a presumption that the parties should, or should not, be brought together. Instead, I treat the decision as another part of the mediation that should be explored deliberately and in advance.
Key Preparation Considerations
- Ask rather than assume. Some survivors want an opportunity to speak directly to an institution or its representatives; others have no interest in doing so. Defendants may likewise have strong views about participating in a joint setting.
- Consider who would be in the room. A meeting between a survivor and representatives of an institution presents very different considerations from one involving the individual alleged to have committed the abuse.
- Account for the procedural history of the case. The presence or absence of criminal findings, including whether there has been a conviction, may affect both the appropriateness of a joint session and how any interaction should be structured.
- Define the purpose before bringing people together. A joint session may provide an opportunity to speak, to listen, to ask or answer questions, or simply to observe. Participants should understand its purpose before deciding whether to take part.
- Prepare the interaction carefully. If a joint session will occur, discuss expectations, participants, timing, and boundaries in advance so that the interaction is intentional rather than improvised.
During the pre-mediation process, I work with counsel on both sides to understand their clients’ preferences and what, if anything, they hope to accomplish through direct interaction. Where the defendant is an individual alleged to have committed the abuse, the considerations are often particularly sensitive. Many survivors may not want to be in the same physical or virtual space as the alleged perpetrator, but I do not assume that is universally true. Nor do I assume that a defendant will want to participate.
If a joint session does occur, I prepare participants for its purpose and structure. For one participant, the value may lie in having an opportunity to speak; for another, it may be in listening. Sometimes the most useful joint session is not an opening session at all, but a carefully structured conversation later in the day, after the mediator has identified the issues or value drivers that are preventing resolution.
The goal is not to create interaction for its own sake. It is to determine whether bringing participants together can serve a useful purpose in that mediation and, if so, to structure the interaction in a way that is deliberate, respectful, and contained. Choice is meaningful only when participants understand what they are choosing and why.
Understanding Insurance and Financial Realities
A thoughtfully designed mediation can still fail if the parties arrive without a realistic understanding of the resources available to fund a resolution. In sexual assault cases, particularly those involving older claims or institutions, insurance coverage and ability to pay can be complicated. I therefore try to understand the financial landscape before the mediation begins rather than discovering its limitations in the middle of negotiations.
Key Preparation Considerations
- Identify all potentially available insurance coverage. Particularly with older claims, determining what coverage exists may require examining multiple policy periods, layers of coverage, and trigger issues.
- Do the historical work when necessary. In some cases, locating older policies may require engaging an insurance archaeologist or undertaking other efforts to reconstruct the defendant’s historical coverage.
- Understand who controls the money. The existence of insurance does not necessarily mean that funds are immediately available for settlement. Mediators should understand which carriers are participating, where authority sits, and whether coverage disputes may affect negotiations.
- Assess actual ability to pay. Where insurance is unavailable or insufficient, consider whether the defendant’s financial capacity needs to be explored before mediation, including through limited or targeted financial disclosures where appropriate.
- Address material financial limitations early. If the resources available for settlement are substantially different from what the other side reasonably expects, confronting that issue before the mediation can prevent the negotiation from being built around an unrealistic premise.
In jurisdictions such as New York, where revival statutes have permitted claims involving conduct alleged to have occurred decades earlier, coverage questions can be particularly complex. Policies may be difficult to locate, and disputes may arise over applicable policy periods, triggers, limits, exclusions, or the allocation of responsibility among carriers. Before mediation, I encourage defendants to identify every potentially available layer of coverage and, when appropriate, to engage an insurance archaeologist to help locate historical policies.
These conversations generally occur privately with defense counsel rather than as part of a joint pre-mediation call. My objective is not to resolve coverage disputes during the underlying mediation. It is to understand whether those disputes or limitations are likely to affect the parties’ ability to negotiate meaningfully. A mediator who does not understand where settlement dollars might come from may spend much of the day negotiating toward a number that cannot be funded.
The same preparation is important when insurance is absent or insufficient. A clear understanding of a defendant’s ability to pay can be critical, whether the defendant is an individual or an institution. In appropriate cases, limited or targeted financial disclosures before mediation may help establish the practical parameters within which negotiations can occur.
Institutional defendants present their own complexities. A plaintiff may reasonably look at a large institution and assume that substantial resources are available for settlement. The reality may be quite different. Funds may be restricted by donor requirements, contractual obligations, governance rules, debt covenants, or other legal limitations. An institution’s overall financial size does not necessarily correspond to the amount it can access for a particular settlement.
These realities should not be used simply as negotiating positions. If there is no insurance, limited coverage, or a genuine constraint on ability to pay, the mediator should understand that information well enough to assess its significance and, when appropriate, help ensure that it is communicated to plaintiff’s counsel early enough to be evaluated meaningfully.
The purpose is not to lower expectations before negotiations begin. It is to make sure those expectations are grounded in the actual resources available. When the parties and the mediator understand the financial parameters of a possible resolution, the mediation can focus on the difficult question of valuation rather than discovering late in the day that the apparent settlement range was never financially achievable.
Comparative Valuation and Context
Mediators handling sexual assault cases benefit from understanding how comparable matters have resolved. No two cases are alike, and settlement values should never be reduced to a formula. Still, experience across cases can provide useful context for evaluating positions, identifying outliers, and helping parties assess risk realistically.
Key Preparation Considerations
- Develop a meaningful frame of reference. Familiarity with settlements in comparable cases can help a mediator evaluate positions and understand the range of outcomes parties may reasonably be considering.
- Look beyond the headline number. Settlement value may be influenced by the nature and duration of the alleged abuse, the relationship between the survivor and alleged perpetrator, the strength of the evidence, the institutional response, damages, applicable defenses, insurance, and the procedural posture of the case.
- Understand the limits of comparables. Similar facts do not necessarily produce similar outcomes. Jurisdiction, timing, available insurance, litigation risk, and the circumstances of the parties can materially affect resolution.
- Learn from experienced colleagues. Particularly for mediators entering this area, conversations with colleagues who have handled similar matters can provide valuable context that may not be available from reported decisions or publicly disclosed settlements.
- Protect confidentiality. Knowledge gained through prior mediations can inform a mediator’s judgment, but confidential information from one matter should never become negotiating currency in another.
When I began this work, I sought out colleagues who had handled similar cases. Those conversations helped me develop a sense of proportionality and consistency while also reinforcing how difficult it is to compare one survivor’s experience, or one defendant’s exposure, to another. For mediators entering this space, building a network of experienced colleagues can be an important part of preparation.
Comparative information is most useful as context, not as an answer. A prior settlement may help a mediator test a party’s assumptions or understand the basis for a demand or offer, but it should not become shorthand for what another case is “worth.” The mediator still must understand the particular facts, legal risks, damages, financial realities, and human dynamics of the case in front of them.
Used thoughtfully, comparative experience gives the mediator a more informed starting point. It can provide a sense of proportionality without creating a rigid valuation system and can help the mediator engage credibly with both sides as they work toward a resolution that reflects the circumstances of the individual case.
Empathy Without Over-Identification
Preparation in these cases is not limited to preparing the parties or designing the process. Mediators must also prepare themselves. These matters can be emotionally demanding, and maintaining the steadiness necessary to guide a difficult mediation requires an awareness of our own reactions as well as those of the participants.
Key Preparation Considerations
- Remain present without becoming overwhelmed. Mediators may hear deeply personal and painful accounts of harm. Empathy requires listening fully while maintaining the perspective necessary to continue guiding the process.
- Hold space for competing realities. A survivor may be recounting profound harm while a defendant, whether an individual or an institution, is confronting serious allegations and significant legal, financial, and reputational exposure. The mediator must remain attentive to both.
- Recognize your own reactions. Certain facts, personalities, or accounts may resonate more strongly than others. Awareness of those reactions helps prevent them from affecting the mediator’s neutrality or judgment.
- Maintain steadiness when the room becomes difficult. Participants often take cues from the mediator. Calm, measured engagement can help keep a difficult conversation productive without minimizing its emotional significance.
- Remember that empathy is not agreement. A mediator can acknowledge what a participant is experiencing without endorsing that participant’s factual or legal position.
Empathy and neutrality are not in tension. In fact, I believe the ability to be genuinely present with participants while remaining objective is central to effective mediation in these cases. Acknowledging the human impact of the dispute does not require the mediator to decide whose account is correct, minimize litigation risk, or abandon rigorous analysis of liability and damages.
That distinction matters on both sides. A survivor should be able to speak about the impact of the alleged conduct without feeling that the mediator is simply waiting to return to numbers. At the same time, a defendant should be able to discuss defenses, evidentiary issues, financial realities, and litigation risk without feeling that doing so is inconsistent with the tone of the process. The mediator’s task is to make room for both conversations.
There will inevitably be moments when the emotional weight of a case is significant. The mediator does not need to become detached from that reality. But neither is it helpful to absorb it to the point that it affects judgment or the ability to move between rooms with the same openness and credibility.
That steadiness is part of what participants rely on the mediator to provide. It allows the mediator to acknowledge the humanity of the dispute while continuing to ask difficult questions, test assumptions, assess risk, and help the parties make decisions. In these cases, especially, empathy is most useful when it strengthens, not replaces, the mediator’s neutrality.
Conclusion: Preparation as Process
Every procedural choice a mediator makes- how participants are prepared, how the day is structured, how information is communicated, and how difficult conversations are managed- contributes to the participants’ experience of the process. In mediations involving allegations of sexual assault, those choices deserve particular attention.
The framework described here is not intended to make difficult mediations easy. Nor is it intended to eliminate disagreement, minimize litigation risk, or insulate participants from the difficult realities of the case. Liability and damages remain central. Defendants are entitled to test allegations and assert defenses. Survivors may need to confront difficult assessments of evidence, causation, damages, and litigation risk. A well-designed process does not avoid those conversations; it creates better conditions for having them.
That begins long before the mediation itself. It means establishing trust and expectations during the pre-mediation process; paying attention to tone and emotional dynamics; planning the physical and virtual environment; making deliberate choices about joint sessions; understanding insurance, financial capacity, and comparative valuation; and preparing ourselves as mediators to remain both empathetic and objective throughout the process.
None of these practices guarantees settlement. That is not the measure of whether the preparation was worthwhile. A mediator cannot control whether the parties ultimately agree, but the mediator can exercise considerable control over the integrity of the process through which they are asked to make that decision.
Preparation is not a formality; it is a safeguard. When mediators approach these cases with clarity, thoughtfulness, and attention to both substance and experience, they create the conditions for informed decision-making and meaningful resolution. And whether a case ultimately settles, the process itself should reflect the qualities we ask participants to place their trust in: fairness, dignity, care, and respect.