In sexual abuse cases, a survivor’s1 decision to file a civil action against the abuser can often be an empowering experience and an important step in the healing process. A civil suit, however, can also be very stressful on the survivor, who must weigh the risk of exposing his or her private life to the abuser, the court, and in some instances the media.2 The filing of a civil suit requires the survivor to talk about (and therefore remember) the abuse. Issues of privacy and confidentiality are frequent concerns for sexual assault survivors. Survivors report that they are more concerned about others finding out about the assault than they are about getting pregnant or a sexually transmitted infection.3 In my own practice, I have met with survivors who refuse to file a criminal action against the abuser for fear family members or friends may learn about the assault. At the same time, it is widely recognized that the very nature of this type of harm feeds on secrecy. There is very little question that this secrecy oftentimes empowers the abuser to continue to harm with impunity. It is in that backdrop that mediation and confidentiality clauses have been found to play such a critically important, yet controversial, role. Mediation and confidentiality clauses permit for relatively low exposure for abusers, while also protecting the privacy of the survivor. This article addresses both sides of the debate: how secrecy and confidentiality can be used as a weapon to empower the reticent survivor while increasing the value of the case, and how they can also be used as a harmful shield by the abuser as a means to discretely shut down potentially embarrassing publicity and reduce accountability.
Cases involving sensitive issues like sexual abuse benefit from the confidentiality of mediation versus litigation in open court.