November 06, 2014 DISPUTE RESOLUTION

Mediation and Issues of Secrecy and Confidentiality in Sexual Abuse Cases

Published in The Brief Winter 2014, Volume 43, Number 2, ©2014 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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. 

 

Civil Action and Privacy Issues

A civil action involving a sexual assault is a legal action brought against the abuser (defendant) by the survivor (plaintiff) in a civil court for harm done to the survivor as a result of the abuser’s actions.4 The action is separate and independent from any criminal actions, and the remedy is monetary in nature. Although a civil action allows the survivor a greater amount of “control” over the presentation of the case, the burden is still on the survivor to present a sufficiently compelling case to merit a jury’s finding against the abuser.

Some states have enacted statutes barring disclosure of a minor victim’s identity.5 To that end, the survivor may have to disclose information and records that would otherwise have been confidential, and the law in most states is such that most records are made public. By bringing a civil action, a survivor may lose a great deal of privacy, because the action stems from a survivor’s claim that the abuser harmed him or her in some way. Rape shield laws that offer protection in criminal cases do not apply in civil cases in all jurisdictions.6 Through the process of discovery, the defendant can obtain personal information about the plaintiff that may include: psychiatric and medical records and evaluation, employment and education history, past sexual history, credit history, criminal history, tax records, computer files, etc.

It is within plaintiffs counsel’s purview to determine what information is relevant and should be disclosed, and also to seek an order from the court protecting the plaintiff from harassing or overbroad discovery requests.7 Obviously, the plaintiff also has the right to request similar information from the defendant, but to the extent that the plaintiff is making the claim, there is a greater burden on the plaintiff to produce information.

Settlement and Confidentiality Agreements

When an out-of-court settlement is reached, it is a legally binding contractual agreement in which all parties to the agreement are entitled to expect some benefit to flow to them. Plaintiffs expect to receive compensation for the injuries and the harms they have suffered, and to avoid a continuing legal process. Defendants make a payment in exchange for closure.8 Either party may request a confidential settlement. The defendant may wish to prevent the plaintiff from revealing the facts of the case, the identity of the defendant, or the settlement amount to others.9 It can be a simple clause, such as “the terms of the settlement shall remain confidential,” or it can be more complex. If a confidentiality clause is breached, the confidentiality agreement usually will provide for injunctive relief, and damages may be recoverable if the nonbreaching party can demonstrate pecuniary loss caused by the breach. A typical confidentiality clause provides:

This Agreement and all of the terms and information contained herein shall be kept strictly confidential and shall not be disclosed to any person, corporation, or other entity not a Party to this Agreement, except:

i. In legal proceedings for purposes of enforcing this Agreement;

ii. To the Parties’ regulators, as may be required by law, rule, or regulation;

iii. In response to a judicial order compelling disclosure or as otherwise may be required by law or be necessary to defend or assert claims by or against any Party hereto in a judicial proceeding;

iv. With respect to subsidiaries, affiliates, or parents of the Parties, and their counsel; 

v. With respect to accountants, auditors of, or counsel to the Parties upon their request, provided, however, that disclosure under subsections (v) and (vi) shall be made under appropriate assurances of confidentiality; and

vi. As may be agreed, in writing, by authorized representatives of the Parties. In the event of a request, motion, or application seeking or making disclosure of this Agreement, the Party with knowledge of such request, motion, or application shall notify the other Party in writing in sufficient time for such Party to seek a protective order, including a motion to file under seal. The Parties acknowledge and agree that breach of this agreement presumptively will result in injury for which damages may be insufficient and for which injunctive relief is warranted. 

Both plaintiffs and defendants can theoretically benefit from confidentiality agreements. In fact, confidentiality clauses have been regarded as “value creation tools” that add something to the settlement dynamic.10 In other words, confidentiality clauses can be used as a bargaining tool and as a means of speeding up the settlement process.11 Defendants who want these agreements tend to want to avoid negative publicity, to avoid further lawsuits, or to protect proprietary information. Sometimes, plaintiffs want to use them as well, perhaps to keep identities a secret, to keep health information secret, and to alleviate victimization concerns. Also, some plaintiffs want to keep the amount of the settlement secret in order to discourage people from looking to them for financial assistance, as well as to stop others from thinking they settled for too little.12 When confidentiality clauses in settlement agreements are “routine,” they become a missed opportunity to create value. Confidentiality clauses should be discussed and bargained over, and their implications should be carefully considered.13

 

Mediation in Sexual Abuse Cases

High-profile cases involving the Catholic Church, football coaches, universities, and movie stars have called into question whether mediation is an appropriate means of dealing with cases arising out of sexual abuse. In 2002, the ADR Bulletin in Australia published an article addressing how little is known about the use of mediation in these types of cases.14 Not so many years later, but in the aftermath of the Catholic Church’s settlement negotiations, we now have a much clearer understanding of the role of mediation in sexual abuse cases. Whether mediation is appropriate for cases of sexual abuse is still being heatedly debated. What is clear is that mediation is a favored dispute resolution tool in these cases because of the confidentiality concerns both parties frequently share.

A few points must be addressed before engaging in a survey of the use of mediation in sexual abuse cases. First, it is not clear whether mediation as defined in these cases is a process that brings together the survivor and the abuser, or the abuser’s employer, or rather is limited to the parties’ attorneys or group representatives. Second, it is not clear from the media reports and information provided by counsel as a result of settlement, what the mediation in these cases looks like and whether it falls in the same category of mediation commonly understood in alternative dispute resolution (ADR) circles. As discussed below, there seems to be a pattern for clergy cases of sexual abuse, but even within the “process” adopted by the vast majority of archdioceses, it is not clear what the mediation, in and of itself, looks like. Third, it is unclear whether the mediation process requires a hearing or determination on liability by an arbitrator or representative of the accused party, or whether these mediations focus on the issue of damages only without a requirement for admission of liability.15

Some ADR proponents and many advocates of survivors take issue with the use of mediation as a process of resolution for sexual abuse cases, arguing that the very nature of the abuse, with its power imbalance between the abuser and the survivor, is so inconsistent with the power equality expected in mediation.16 Advocates of survivors go as far as to say mediation can be dangerous in instances where physical or emotional abuse is occurring or has occurred.17 In domestic violence cases, the abuser may use violence, threats, or emotional abuse to control and intimidate the survivor into agreements with which he or she may be uncomfortable. That said, even in cases of spousal violence, where mediation may have been discouraged at one point, the use of mediation has since become more prevalent, due in large part to the evolution of mediation practices and training.18 It could be argued in support of the use of mediation in sexual abuse cases that the process of mediation also can be empowering to the survivors of abuse.19

More compelling for the use of mediation in sexual abuse cases is the promise of privacy and confidentiality—for both the survivor and the abuser. As discussed above, it is undisputed that survivors of sexual abuse prefer to keep their experiences out of the public arena. This is, of course, an interest shared with those against whom claims for compensation are made.20 In one prominent case, a California court upheld the right of priests accused of sexual misconduct to bar their archdiocese from disclosing written summaries of personnel records the priests had prepared for use in mediation.21 The question then of where the line should be drawn between “hush money” and a process taking into account the privacy of the parties may become blurred based, in large part, by the dissatisfaction of the survivor with the process, the outcome, or both. For those survivors who enter private mediation and whose choice is voluntarily made, preferably with the protection and guidance of independent advice, the institution of law should uphold the private choice above the public interest.22  

Disclosure and the Public Interest

The question of the public interest must be addressed if we are to properly expose the challenges involved in the use of confidentiality agreements and mediation. The language now in vogue is that these types of cases must be dealt with in the “sunshine” because the subject matter in dispute is of public interest, meaning the public has an overreaching interest in the broadcasting of the identities of sexual abusers. Albeit compelling, this argument is neither supported by our present legal system, nor does it seem to be very important as far as the media is concerned in their criticism of the confidentiality of settlements reached in mediation.

In the current system, survivors of sexual abuse have the choice between doing nothing, criminally prosecuting the abuser, bringing a civil claim against the abuser, or adopting an alternative process that meets the other party’s interest in privacy and confidentiality.23 The argument is that mediation does not take into account the interests of people other than the participants, for example other victims or potential victims who might be protected if the conduct of certain abusers was made public.24 Opponents of mediation in sexual abuse cases point to mediation’s private character undermining the deterrence and education of potential offenders by making what would otherwise be a very public process into a self-contained and restricted one. 

Sexual Abuse and Mediation in Universities, Hospitals, and the Boy Scouts

An incident at Brown University in 1996 led to an extensive discourse on whether mediation was an appropriate dispute resolution process for sexual assault cases in university settings. On the one hand, mediation proponents reasoned that mediation is often a superior option to criminal prosecution or university disciplinary hearings for resolving university sexual assault cases.25 It is more effective at specific deterrence and individual education, although it may be less effective at general deterrence and education. A mediation option is also likely to encourage more victims to report incidents of sexual assault, and its flexibility can minimize the revictimization of survivors in a way the current alternatives cannot.

In 2007, seven former boy scouts brought a lawsuit against the organization, claiming they had been sexually abused when they were members of the same troop in Oregon in the 1980s.26 The judge in the case, John A. Wittmayer, selected Kerry Lewis’s case to go to trial first. At the trial, a former assistant troop leader, Timur Dykes, admitted to molesting Lewis when Lewis, who still lived in Oregon, was about 12. After a verdict in the amount of $19.9 million in Lewis’s favor, the judge sent both sides into mediation in hopes of reaching a settlement in the remaining six cases. In September 2010, the parties reached a financial settlement, whose terms were not disclosed by either party.27

In 2008, attorneys for the plaintiffs in the child sexual abuse suits against St. Francis Hospital in Hartford, Connecticut, agreed with the hospital to handle the cases through mediation.28 The cases stem from the abuse of about 500 children perpetrated by endocrinologist Dr. George Reardon in his hospital office from the early 1960s to the early 1990s. The two sides failed to achieve an agreement, and in October 2009 the judges overseeing the mediation declared that the parties were at an impasse. A confidentiality agreement prevented the parties from disclosing why the mediation failed. In March 2012, however, a significant obstacle to settlement was removed with a confidential mediation agreement by and between the various insurers that temporarily set aside a dispute among them about liability cost share.29 The confidential agreement, mediated by Superior Court Judge Robert L. Holzberg, meant that 39 child sexual abuse survivors whose claims remained unresolved could resume settlement mediation talks with the hospital and its insurers. The confidential agreement gave the survivors opportunities to settle without waiting months or years it could take the insurers to work out their coverage disagreements. Confidential settlements with these survivors and others were reached in April 2012.30

In September 2012, Pennsylvania State University announced it had hired a mediator, Feinberg Rozen, LLP, to facilitate negotiations in the hope of settling the civil claims of Jerry Sandusky’s victims.31 The former assistant football coach was convicted in June 2012 of 45 counts of child sex abuse. Penn State began reaching settlements with some of the survivors in October 2013.32 

Catholic Church’s Priest Sexual Abuse Scandal and Mediation

The chapter of sexual abuse of children in the church’s history can be said to date from 1985, when Rev. Gilbert Gauthe was convicted in Louisiana and sentenced to 20 years in prison for molesting at least 30 children.33 More people came forward with charges of sexual abuse by priests, but it took until 1992 for the United States Conference of Catholic Bishops to spell out policy recommendations that advised bishops in dealing with such cases. After more cases emerged across the country, many dioceses adopted the recommendations, which called for removing priests accused of abuse from service, sending them into treatment, and providing survivors with counseling and pastoral care.34 The issue faded from the public view. Yet, victims continued to step forward, quietly, insisting that confidentiality was necessary for the victims and the accused; church lawyers settled hundreds of lawsuits, paying victims anywhere from a few thousand dollars to millions each.35 Some estimates put the number of victims in the United States at over 280,000.36

The Roman Catholic Church has taken the position that the most appropriate way to deal with cases of clergy abuse is through independent church mediation.37 Mediation for abuse claims is attractive for the obvious reasons: privacy, efficiency, cost, and finality.38 However, many question whether mediation truly gives the victim a fair route to justice.39 They argue that in some clergy sexual abuse cases, bodies responsible for ministerial credentialing have misused mediation to the disadvantage of people who have come forward.40 Specifically, the problem lies where mediation is suggested as a means of keeping the matter confidential and disposing of the complaint as quickly as possible, before the allegations are investigated. Undoubtedly, the church favors mediation because it focuses more on preventing information from reaching the public than it does on compensation, accountability, and reconciliation.41 But this has devastating consequences for the survivor because it frustrates his or her efforts to regain a sense of power by standing up and encouraging the community to confront the abuser.42 Moreover, using mediation to avoid taking disciplinary action or to mitigate discipline is an inappropriate use of the process. 

Conclusion

In sum, mediation of sexual abuse cases has presented challenges with regard to confidentiality interests.

1. Mediation and confidentiality clauses permit for relatively low exposure for abusers.

2. The negative result is that secrecy in mediations involving confidentiality agreements can empower the abuser to continue to harm with impunity.

3. Some argue that the public has an overreaching interest in the broadcasting of the identities of sexual abusers, and the private character of confidential mediation undermines the deterrence and education of potential offenders by making what would otherwise be a very public process into a self-contained and restricted one.

Mediation has, however, shown it may have the following advantages with regard to confidentiality interests:

1. Mediation in confidence allows the survivor to avoid exposing his or her private life to the public, the court, and in some instances the media.

2. A mediation option may encourage more victims to report incidents of sexual assault, and its flexibility can minimize the revictimization of survivors in a way the current alternatives cannot.

3. Pursuing a survivor’s case via mediation, in lieu of a long drawn out litigated court battle that can last for several years, expedites the resolution of a survivor’s case, which is an important step in the healing process. 

Notes

  1. The words “survivor” and “victim” can and have been used interchangeably to describe those who have suffered sexual abuse. To the extent that over the years I have represented many of these individuals as plaintiffs counsel, and have therefore met a great number of them, I am more comfortable with the language of survivor and have made a conscious choice to use that description throughout this article.
  2. N.D. COUNCIL ON ABUSED WOMEN’S SERVS./COAL. AGAINST SEXUAL ASSAULT IN N.D., A GUIDE TO CIVIL ACTIONS FOR SURVIVORS OF SEXUAL ASSAULT 2 [hereinafter NDCAWS GUIDE TO CIVIL ACTIONS], available at www.ndcaws.org/resources/publications.html (last visited Dec. 23, 2013).
  3. Ellen Bublick with Jessica Mindlin, Civil Tort Actions Filed by Victims of Sexual Assault: Promise and Perils, VAWNET.ORG, 6 (Sept. 2009), http://vawnet.org/Assoc_Files_VAWnet/AR_CivilTortActions.pdf.
  4. NDCAWS GUIDE TO CIVIL ACTIONS, supra note 2, at 4.
  5. E.g., N.Y. CIVIL RIGHTS LAW § 50-b.
  6. E.g., Sonia F. v. Eighth Judicial Dist. Court, 215 P.3d 705 (Nev. 2009).
  7. Id. at 709.
  8. Elizabeth K.P. Grace, Confidentiality of Settlements in Sexual Abuse Cases—Necessary Evil or Positive?, JD SUPRA L. NEWS (Feb. 1, 2013), www.jdsupra.com/legalnews/confidentiality-of-settlements-insexual-28778/.
  9. NDCAWS GUIDE TO CIVIL ACTIONS, supra note 2, at 14.
  10.  Id.
  11. Cornwall Pub. Inquiry, Phase 2 Workshop: Confidentiality Agreements in Civil Settlements 2–3 (Dec. 4, 2008), available at www.attorneygeneral. jus.gov.on.ca/inquiries/cornwall/ en/healing/meetings/pdf/Policy- Roundtable-on-Confidentiality-Clauses_Dec_4_2008_en.pdf.
  12. Id. at 2.
  13. Id.
  14. Tom Altobelli, Mediation in Sexual Abuse Cases: Opportunism or Anathema?, ADR BULL., June 1, 2002, at 1, available at http://epublications. bond.edu.au/cgi/viewcontent.cgi? article=1187&context=adr.
  15. Id. at 1–2.
  16. Id. at 2.
  17. Domestic Violence & Mediation, N.H. COALITION AGAINST DOMESTIC & SEXUAL VIOLENCE, www.nhcadsv.org/Mediation.cfm (last visited Dec. 23, 2013).
  18. Altobelli, supra note 14, at 2.
  19. Id.
  20. Id. at 3.
  21. Doe 1 v. Superior Court, 34 Cal. Rptr. 3d 248 (Ct. App. 2005).
  22. Altobelli, supra note 14, at 3.
  23. Id.
  24. Id.
  25. Rajib Chanda, Mediating University Sexual Assault Cases, 6 HARV. NEGOT. L. REV. 265, 306 (2001).
  26. Katharine Q. Seelye, Boy Scouts Settle Suit with Victims of Abuse, N.Y. TIMES, Sept. 1, 2010, www.nytimes.com/2010/09/02/us/02boyscouts.html.
  27. Id.
  28. Arielle Levin Becker, Reardon Talks Break Down, HARTFORD COURANT, Oct. 9, 2009, http://articles. courant.com/2009-10-09/news/reardon- lawsuits-1009.art_1_mediation-child-sex-abuse-trial-date. 
  29. Edmund H. Mahony, Mediation on St. Francis Child Sex Abuse Cases to Resume, HARTFORD COURANT, Mar. 5, 2012, http://articles.courant.com/2012-03-05/health/hc-saint- francissettlement-0306-20120305_1_george-reardon-abuse-triggers-abuse-victims.
  30. Edmund H. Mahoney, St. Francis Settles Reardon Child Sex Abuse Claims, HARTFORD COURANT, Apr. 24, 2012, http://articles.courant.com/2012-04-24/health/hc-st-francis-reardonsettled-0425-20120424_1_george-reardon-child-sexual-abuse-growth-study.
  31. Jeremy Roebuck, Penn State Hires Mediator for Sandusky Civil Claims, PHILA.INQUIRER, Sept. 21, 2012, http://articles.philly.com/2012-09-21/news/33978380_1_sandusky-victims-jerry-sanduskytwitter-jeremyrroebuck.
  32. Penn State to Pay Sandusky Child Abuse Victims $59.7M in Settlements, GUARDIAN, Oct. 28, 2013, www.theguardian.com/world/2013/oct/28/penn-state-sandusky-victim-settlements.
  33. See Roman Catholic Church Sex Abuse Cases, N.Y. TIMES, http://topics.nytimes.com/top/reference/ timestopics/organizations/r/roman_catholic_church_sex_abuse_cases/ (last visited Dec. 23, 2013).
  34. Id.
  35. Id.
  36. Jeffrey Pruzan, Abuse, Mediation and the Catholic Church: How Enforcing and Improving Existing Statutes Will Help Victims Recover, 13 CARDOZO J. CONFLICT RESOL. 593, 593 (2012).
  37. Michelle Rosenblatt, Hidden in the Shadows: The Perilous Use of ADR by the Catholic Church, 5 PEPP. DISP. RESOL. L.J. 115, 127 (2005).
  38. Pruzan, supra note 36, at 596.
  39. Rosenblatt, supra note 37, at 127.
  40. See, e.g., Kimberly Day Lewis, Mediation in Cases of Sexual Abuse by Clergy: Use & Misuse, WORKING TOGETHER (FaithTrust Inst.), Winter 2006, at 2.
  41. Pruzan, supra note 36, at 600.
  42. Lewis, supra note 40, at 2. 

Valerie B. Calistro

Managing Partner - Ventura

Valerie B. Calistro serves as managing partner of Ventura, Ribeiro & Smith, which maintains offices in Connecticut and New York City. She currently concentrates in personal injury law, with a focus on the representation of victims of sexual assault, including minors, and traumatic brain injuries. Calistro can be reached at vcalistro@vrslaw.com. 

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