I write this in the aftermath of yet another mediation in which the protagonists exhibited symptoms of having been seriously traumatised by the litigation process to which they had been exposed. Depression, suicidal thoughts, anger, loathing, destroyed relationships, large amounts of money spent with no discernible value. And this was a commercial situation, not a family or neighbourhood conflict.

It came to me recently that litigation (in all its forms) is a traumatic event for many people. By that I mean it causes actual trauma, individually and collectively, to many who are caught up in it. My understanding of trauma is superficial, but I now realise that it is more extensive and deep-seated than I had once imagined. Repeatedly exposing people to past events which have caused them pain, revisiting adverse situations, is likely to exacerbate the damage. Is this not just what we do with litigation? By prioritising litigation as a problem-solving mechanism, do we not perpetuate a form of state-sponsored harm, causing untold damage at a societal level?

On the other hand, by giving people control over their present and future circumstances, it seems possible to reduce trauma. That is where mediation fits in of course. It provides, or should provide, what the experts refer to as psychological safety. An opportunity to heal. At an individual and societal level, this seems essential. Perhaps we need to take a much broader view of mediation’s value and importance than seeing it merely as an “alternative”.

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