MEDIATION IN CHURCH SEXUAL ABUSE CASES

By Richard Calkins

One of the great tragedies of modern times has been the magnitude of the sexual abuse of children by clerics. Child abuse standing alone is tragic, but when committed by a person of the cloth the consequences can be severe and lasting. It impacts not only the body and mind, but also the soul of the person.

When a lawsuit is filed against the church or is threatened, the matter is generally mediated before discovery commences or the matter made public. Because the cleric rarely has resources to pay a substantial verdict, the church or religious order is always the focus of such actions. For that reason, special considerations come into play unique to this type of mediation.

The need for mediation in such cases is compelling for several reasons: first, the pendency or trial of the matter denigrates the good name and spiritual mission of the institution involved; second, putting an abused person through trial only revictimizes the individual; third, a trial forecloses opportunity to incorporate noneconomic corrective measures which ultimately may be of more significance to a victim than an award of damages; and fourth, mediation can save the institution from facing the prospects of bankruptcy or insolvency.

This article discusses a unique mediation format crafted to meet the needs of cleric –related abuse cases, which has proven successful over the years.[1]

  1. Preliminary Consideration

There are several preliminary considerations that should be weighed before commencing the mediation: (1) should the victim sue individually or as part of a group seeking a global settlement; (2) is there insurance coverage; (3) when defenses are available are there pending motions; (4) how solvent is the church entity or religious order and can it sustain a large verdict?

  1. Parties.

So often the pedophile or ephebophile cleric has a history of abuse, affecting numerous young victims. It is rare when there is only one or two victims. As such, a question arises as to whether victims should mediate as a group and seek a global settlement or sue individually.

If the victims are represented by separate counsel, it is more difficult for the mediator if the parties sue together. This is because attorneys tend to compete as to who can obtain the largest settlement. Once a settlement is reached it sets the floor for subsequent settlements although the circumstances might be quite different. The mediator is put in a position of having to explain why one victim is not being offered as much as another. This is particularly true in the Roman Catholic Church where all settlements are made public unless a plaintiff requests otherwise. Because of this public disclosure, competition between attorneys is even more severe and the mediator more vulnerable to complaints.

If victims are represented by the same attorney, there are advantages to both the church and the victims to combine them into one mediation: First, it is more economical for the church entity to mediate with one attorney covering multiple claims than to address each separately.

Second, if the church can negotiate a global settlement it eliminates the prospects of having to negotiate or try cases separately. Most often the church will insist that all victims must agree to the global settlement or there is no agreement.

Third, not infrequently frivolous actions are filed or ones where viable defenses will bar recovery. If they can be netted in the global settlement this again eases the burden on the church.

Fourth, a global settlement generally will cost the church less than negotiating separately with each victim, both in terms of legal fees and settlement value. If victims go their separate ways, they often retain separate counsel, which creates the competitive arena mentioned above.

From the claimant’s perspective there are likewise decided advantages. First, in a global settlement each claimant, no matter how weak his case may be, is assured of receiving something.

Second, as a group claimants have greater leverage in effectuating a settlement than when they sue separately. This can facilitate greater concessions concerning noneconomic demands. For example, in one case involving 15 claimants, the bishop agreed, among other things, to meet monthly with representatives of the settling group to discuss ongoing concerns.

Third, from plaintiffs’ counsel’s perspective, there are also decided advantages to the global approach to settlement. Counsel is able to recover something for each claimant, even those with minimal prospects of surviving a motion to dismiss or summary judgment. He also has greater leverage in obtaining noneconomic concessions which will protect future vulnerable children. Similarly, there is greater leverage in demanding production of documents and disclosure of other abusers and victims hidden in church archives.

There is an important caveat when counsel, representing multiple victims, seeks a global settlement. He must have a matrix worked out for the disbursement of funds to which each victim agrees, and he must have a signed waiver of conflicts of interest should any arise during the course of the negotiations.[2]

In establishing a matrix there should be agreement of who will determine the allocation of funds, and what review process will be used for those claimants dissatisfied with the allocation. The matrix itself might include: (1) nature of the abuse, (2) length of time the abuse occurred, (3) impact the abuse had on the victim in adult life, (4) defenses available to the church, and (5) other equitable considerations.[3]

  1. Nature of abuse.

Pedophiles and ephebophiles follow a set pattern of abuse. When a claim is made that does not fit the pattern, it is suspect. Although all acts of abuse are serious, some are more heinous than others. The matrix seeks to measure the severity of the abuse and give weight to those acts which are more serious and, therefore, more injurious to the victim. It should be noted, however, that a minor act of abuse might trigger severe lifelong injuries and suffering. On the other hand, serious sustained abuse might be overcome by the victim.[4] Each victim reacts differently.

Victims have certain common characteristics: first, they feel they are the only one abused and are surprised to learn others were also victimized. Second, they blame themselves for what occurred and do not understand how they let the abuse happen. Third, they tell no one, especially their parents, because they would not be believed that a person of the cloth could commit such heinous acts and they would be punished for making such accusations. Fourth, the abuse dramatically affects their grades while in school and their interest in sports and other social activities. Fifth, the abuse triggers abuse of alcohol and drugs, including cocaine and heroin, even while in middle school and high school. Sixth, few continue their education beyond high school and rarely reach the potential they would have enjoyed if the abuse had not occurred. Seventh, any number have committed suicide because unable to bear the depression that results from the abuse. And, eighth, some victims get involved in criminal activity and end up in jail.

  1. Length of time the abuse occurred.

Although not decisive, the length of time the abuse occurred in considered in the matrix. The longer the child is exposed to the abuse, the greater the consequences are generally impacting the individual in later life.

  1. Impact of the abuse in adult life.

The matrix also considers the victims present circumstances as an adult. Those most seriously affected face a life of shame, anxiety and despair. They often have gone through multiple jobs unable to accept authority. Many have struggled to maintain a marital relationship. The vast majority are alcoholics and drug addicts or recovering from such. A certain number have ended up in jail on felony charges related to drugs.

  1. Defenses available to the church.

Defenses available to the church entity are also measured. If there are viable defenses, discussed in a subsequent section, particularly if it would result in summary judgment, the victim’s settlement falls into a lower category. Thus, victims, where there are no defenses, have the highest rating in the matrix, and those where there are viable defenses, the lowest. The latter category generally means the church entity is settling for pastoral reasons and not legal responsibility. Some church entities, once satisfied the abuse occurred, will provide funds to help the victim receive counseling and other support.[5]

  1. Other equitable consideration.

This is a catch all measure which permits the person making the allocation to consider such other matters as the victim’s cooperation in initiating the matter and taking a leadership role in prosecuting it. He might also consider other hardships faced by a victim unrelated to the abuse.

  1. Insurance.

A determination as to whether there is insurance is important at the outset. Because the abuser, a cleric, is generally judgment proof, the claimants must look to the church or religious order for any recovery. They may or may not have insurance; however, this should be determined. This can prove difficult at times because often the abuse occurred forty or fifty years before and insurance records may have been lost. Many times, the insurance carrier will proceed ahead with a reservation of rights, often contributing to a settlement at some level, leaving open a declaratory judgment action if settlement is not reached.

When insurance is available there is the question whether there is coverage for sexual abuse. More recent policies exclude such coverage entirely. Older policies excluded intentional and criminal acts, and sexual abuse of children is both. Some policies exclude coverage if the church knew of the abuse. This creates a dilemma because a victim must prove the church knew of the abuse in order to recover against the institution. However, this pleads him out of any insurance coverage because of the above exclusion.

To overcome some of these coverage problems, plaintiffs are now pleading negligent hiring, negligent supervision, and negligent retention.

  1. Defenses.

There are any number of defenses the church or religious order can raise. The two most common are the statute of limitations and notice to the church entity the cleric is an abuser. It should here be noted that if the issue of a defense is submitted to the jury as a question of fact, the church faces a difficult challenge. Juries are not prone to be concerned about the niceties of legal defenses.[6]

In all jurisdictions, the statute of limitations does not run until the victim reaches majority, normally 18 years of age. The action must be brought within one or two years thereafter or be barred. More recent statutes provide that the statute does not run until the victim realizes he had been sexually abused or he recognized that the injuries he is suffering are causally connected to the abuse. The law on this issue varies widely from jurisdiction to jurisdiction.

A second defense is notice. If the victim seeks recovery against the church entity, the latter must have had notice that the cleric was a pedophile. This is usually satisfied if there were earlier victims of the same cleric and they were reported. In early years, the Catholic Church moved a pedophile to another parish if there was such a complaint. This is sufficient to satisfy the factor of notice. The difficulty arises when the person suing is the first known victim of the cleric.

A third defense is statute of repose. Some states require a person to commence litigation by the time they are 30 years old, for example, or be forever barred from filing. Again, local state law should be examined for this varies from state to state.

A fourth defense is charitable immunity. Some states protect charitable institutions, including churches, from liability. Most states have restricted or eliminated this defense altogether.

The mere fact a cleric is an employee of the church is not sufficient to hold the church legally liable for his conduct. Respondeat superior does not apply in such cases in any state of the United States.[7]

  1. Solvency of the church entity.

A major consideration is the solvency of the church entity or religious order. Bankruptcy benefits the church to the extent it stops victims from coming forward in waves and making claims. Once the bankruptcy is closed, victims are barred from making past claims. However, there are reasons neither the church nor victims want the church to file for bankruptcy protection. The church is reluctant to file because it conveys the negative impression that the church is shirking its responsibilities to its parishioners and unwilling to take responsibility for the wrong committed. Plaintiffs’ counsel does not want the church to file for Chapter 11 of the Bankruptcy Code because thereafter he loses control of the case. A trustee in bankruptcy assumes all responsibilities and he is responsible to all creditors and not just the victims. Therefore, he may not be acting in the best interests of the claimants.[8]

When a church or diocese contends it is facing financial difficulties, this should be taken seriously. Every effort should be made by plaintiffs’ counsel to verify a problem exists. If satisfied, it should either lower the demand or work out a payment schedule which spreads out payments over a number of months or years.[9]

Religious orders can be on financially weaker grounds than a church diocese. In those cases, plaintiffs’ counsel will seek to also name the diocese as a defendant. Thus, counsel for the diocese will be fighting counsel for the religious order over who should pay.[10]

B. Format

Sexual abuse cases, particularly when a cleric is involved, have a different format than that in most other cases. In non-abuse cases, caucus format includes an opening joint session with everyone present, at which the mediator gives opening remarks and counsel for each side opening statements. Thereafter, the mediator caucuses with each side in separate caucus rooms and shuttles back and forth between them with new demands and offers.

The format of the abuse cases is broken down into three parts, (1) the opening session at which the victim is given an opportunity to vent, (2) separate sessions at which noneconomic considerations are weighed, and (3) negotiations as to damages.

  1. Opening session.

The opening session of the cleric abuse cases includes the victim, a church representative, the attorneys and mediator. The target cleric is never present for several reasons. First, the cleric really plays no part in the process because he generally has no assets which the victim can attach. Second, the abuser is quite often elderly or incapacitated and can add little to the process. Third, the victim could not face the abuser without adding to the stress or discomfort already felt; it would simply revictimize the person. Fourth, the church has already investigated the matter and satisfied the abuse occurred; that is the reason it is mediating the matter.

In the opening session, the mediator invites the victim to say whatever he likes for however long he wishes to speak. The purpose is to give the victim a chance to vent and tell his story. The session is intended to be therapeutic; one that can help the victim in his recovery.

People often wonder how a victim can still be suffering 30 or 40 years after the abuse. The fact is they are still hurting and have been suffering all their adult lives. Allowing them to speak freely may be the first time they have done so, for often they have not spoken to anyone about the abuse, not their families, or even spouses.

Given this opportunity, victims will swear, shout at the bishop, weep, and strike the table with their fists. Some will speak for two minutes, others for two hours. The show is theirs and they are encouraged to let it all out.

Although venting can be therapeutic, it also risks the possibility that the victim is reliving the abuse and in essence suffers a relapse. However, for the most part it proves therapeutic.[11] In responding, the bishop or church representative should do no more than apologize in a compassionate way. He should not offer to give a prayer. This can be highly inflammatory from the victim’s point of view.

  1. Noneconomic consideration.

The next thing discussed is the victim’s demands covering noneconomic considerations. Certainly such matters could never be addressed in a courtroom trial. Yet in the setting of a mediation such considerations may be more significant to victims than money damages. Not infrequently, a victim might compromise on the damage side of the case in order to have in place certain noneconomic considerations. Also, agreeing on noneconomic considerations gives the mediation momentum, and a victim might compromise on the dollar amount not to lose what has already been agreed to.

Some of the noneconomic considerations found in settlements include: