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Friday
Oct072016

Mediation - the Justice of our Times

In an article about statute of limitations reform for child sex abuse victims, the author notes that Cardinal Timothy Dolan of the New York Archdiocese offered mediation and compensation as a means of resolving the claims against Catholic priests. The article states “Mediation is the justice of our times in the vast majority of cases,” and praises the resolution to the extent that it provides a “more efficient and private path for those survivors who would not choose the legal system.” I haven’t seen any statistics verifying that mediation is used in the “vast majority” of cases but, in my opinion, it should be. 

As an attorney, I have had cases that settled literally on the courthouse steps, sometimes with a jury in the box waiting to hear the case. In retrospect, I believe many of those cases could have been settled long before the trial date with the help of a mediator. Unfortunately, some parties prefer not to think about settling until they have fully prepared for trial. A good mediator should be able to help the parties prepare their cases, or at least to think about what it will take to prepare their cases for trial, and then focus on possible resolutions long before trial. 

As a mediator, I have seen parties come to a realization of the true value of their cases and the true costs and risks of fully preparing for trial well before the court’s trial date. Even if the parties are not fully satisfied with the settlement, at least they are relieved to be done with the costs and risks of going to trial. Sometimes, they are happy to have gotten something they could not have gotten in court, like confidentiality. 

The New York Archdiocese offered mediation as a means to awarding compensation to victims of clergy sexual abuse while at the same time keeping each complaint and award confidential and out of court. The mediation was offered before any pleadings were filed in court, without having to go through lengthy and costly motions and discovery. In my experience, such pre-filing mediation is rare. If it works to the satisfaction of both victims and the church, perhaps this will set a precedent for other potential litigants. Then, mediation will truly become the justice for our times. 

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