When the New York State Child Victims Act was enacted in April 2019, the legislature created a look back window that allowed survivors of childhood sexual abuse to file lawsuits through August 2021. During that look back window, more than 10,000 lawsuits were filed, and are now making their way through the court system. Currently, there is an open look back window for lawsuits to be filed under the Adult Survivors Act, and it is anticipated that there will be many filings pursuant to this statute. This article discusses the use of mediation to resolve these cases and why mediating these matters must be handled with care and consideration.

Mediating a sexual abuse case is different

Mediations in sexual abuse cases are different from "garden variety" personal injury claims for a number of reasons. First, it is important to recognize that there is an emotional component, and that it may be difficult for a plaintiff-survivor to discuss the facts of the case. Where a fractured bone can be seen in a trip and fall case, injuries in sexual abuse cases are most often psychological rather than physical. It is important to recognize that the facts are highly personal in nature, and that plaintiffs in these cases may process their trauma differently than plaintiffs in other types of personal injury cases. Next, recognizing that it may be difficult to place a value on someone's emotional pain is key for all parties to understand. Finally, there is the challenge of the passage of time, where witnesses may be deceased, and defendants may be uninsured or underinsured.

Likewise, it is important that the plaintiff understand that the defendant may be an institution that may not have had any knowledge of the actions of the perpetrator and may have had policies and procedures in place to prevent the abuse, and yet may now find itself responsible for payment of a settlement. The mediator must be able to point out to each side the other side's perspective. This is particularly true when the person who committed the abuse is either deceased, or unable to contribute to the settlement in any meaningful way due to a lack of insurance or assets.

Having mediated many sexual abuse cases, it is important to not only speak with counsel for the parties, but to the actual parties as well. The "right" mediator should be skilled in "reading the room" in order to address the concerns of the parties, and not be afraid to point out the strengths and weaknesses in each side's case. Relationship building and trust is critical, particularly because of the emotional overlay of the case.

Pre-mediation preparation 

Prior to a sexual abuse mediation, a conference call should be scheduled with counsel for all parties to determine who will actually be attending the mediation, regardless of whether the mediation is virtual or in-person. Counsel should know in advance if their clients will be attending and should alert the mediator as to whether any special accommodations or arrangements need to be made. For example, the plaintiff may need to arrive to the mediation earlier so as to be placed in a breakout room before the defendant/defense counsel arrives, so they do not have to have contact with the defendant or their counsel. Also, during the pre-mediation conference call, a decision should be made as to whether there will be a joint session, and whether the plaintiff will be present or wants to speak during the joint session.

A particularly effective strategy I have used is to encourage the parties to share their thoughts in writing, which can be attached to the confidential mediation brief of their counsel. As a mediator, I prepare for each mediation by carefully reading the briefs and statements of the parties.

The mediation – strengths and weakness of the case

Once the mediation begins, and the joint session is concluded, I usually visit the plaintiff's breakout room first. This gives me the opportunity to speak directly to the plaintiff and let them know that what they say to me is confidential and ask if there is anything that they want to convey that was not in their statements or said during the joint session. It is important to focus not only on what is said, but what is expressed through their body language. Mediators need to be honest and frank about the strengths and weaknesses of a case, but at the same time be empathetic and compassionate.

Similarly, when visiting the defense breakout room, I like to mirror what was done in the plaintiff's room by allowing the defendant or representatives of the defendant to be heard and be part of the process.

Managing emotions and expectations

Counsel for each side must manage the emotions and expectations of their respective clients and understand just how far the clients are willing to negotiate. Counsel must allow the individual parties to have the final say on any settlement, not just because it is the ethically correct thing to do, but in the case of a plaintiff it allows them to regain some of the power that they may feel was taken away from them as a result of the abuse.

In one case I mediated and resolved, the settlement amount was exactly half of the initial demand. The plaintiff-survivor then insisted on one dollar more than half of the demand, and shared with me that the one dollar was more important to her than the rest of the settlement because it symbolized a "win" over her abuser.

A mediated settlement also allows for creative results, including non-monetary aspects such as including the costs of counseling for the plaintiff, donations to survivor organizations, and even an apology. In a recent case where an individual defendant was uninsured and had no assets, we were able to negotiate a settlement where the elderly defendant signed over the deed to his home but retained a life estate in the property, so that the plaintiff would be able to later sell the home upon the defendant's death.

Conclusion

Mediation is an excellent tool for resolving sexual abuse cases for all parties over traditional litigation. On the plaintiff's side, it eliminates the need to testify in court. It can empower the plaintiff by allowing them to tell their story and giving them a choice as to whether to accept a settlement offer, which can help the plaintiff regain a sense of control. On the defense side, mediation allows for confidentiality, and for certainty, in the outcome. A mediated settlement allows the defendant to cap their exposure and protect against a potentially large jury verdict.

___________________________________________________

Reprinted with permission from the June 20, 2023 edition of the NEW YORK LAW JOURNAL © 2023 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or [email protected]

____________________________________________________

Hon. Elizabeth Bonina is a retired Justice of the Supreme Court, Kings County and is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel. She has successfully mediated numerous high-profile sexual abuse matters and has facilitated the settlement of cases involving a wide range of other practice areas that include personal injury, premises liability, labor law, sports and recreation, and employment law. Judge Bonina has consistently been voted a Top Mediator and Arbitrator since the inception of the New York Law Journal "Best of" survey. In 2023, she was voted the #1 Arbitrator and a Top 10 Mediator in the state. In 2020, she was voted the #1 Mediator / #1 Arbitrator in New York State and has been named the #1 Arbitrator six times in the last eleven years. Judge Bonina is available arbitrate and mediate cases throughout the New York Metro area. 

For any questions or comments, please contact Jacqueline I. Silvey, Esq. via email at [email protected] or via telephone at (800) 358-2550.