Achieving trust in mediation of sexual assault cases

When parties agree to participate in mediation regarding any subject matter, it is a ray of hope that they can achieve closure after years of a litigious and emotional journey. Whether the party is the survivor or entity, they have their version of what the evidence may or may not show in a story that may have been unfolding for years.

Sexual assault cases involve survivors, public or private entities and individual perpetrators. For the survivor, unwanted sexual conduct has already created a sense of betrayal and lost trust. Expectations of a safe setting in a family, educational, and/or religious environment may have been breached. The entity defendant's perspective is pledging a safe relationship and meeting all standards to maintain it. The mediator serves as a neutral third party ready and available to hear all sides.

Mediations of sensitive and emotional sexual assault cases have proven to be effective virtually, in-person, or hybrid, and advocating the venue of choice is an important aspect of whether the case is ready to proceed. Juggling the venue interests of each side is often the preview of challenges yet to arise. An experienced mediator determines the parties' readiness for mediation with a pre-mediation conference or calls. Demands are encouraged in advance so that the defense has the opportunity to round table case value and possibly present a pre-mediation offer. There may be challenges with finding insurance or coverage issues depending on when the sexual assaults are alleged to have occurred. When there are multiple plaintiffs with one or more law firms representing them, the mediator can assess whether there are any potential conflicts. When a global monetary settlement is achieved, the mediator's role can continue to divide the proceeds between them.

The beginning of the mediation is the time for the meet and greet, getting to know the parties and discussing anything other than the details of the case. Mediating sexual assault cases are unique from other subject matter areas involving special damages calculations. Lawyers are protecting their clients, and the mediator wants the client to feel open and comfortable. Representatives of defendants may be the successors of predecessor board members and inherit allegations from years ago to make right for their organizations. Survivors face triggered memories they wish to put behind them and need to know that their sexual assault experiences have been taken seriously by counsel and the mediator. Competing interests need to be addressed and the mediator's mission is to recognize the commonality between them and the parties.

While mediators appreciate lawyer advocacy for their clients, in sexual assault cases, it can be walking a tightrope on when, where, and how that advocacy takes place. Some survivors elect to share the details of their case with the mediator; many lawyers choose not to have their clients get into the weeds of the allegations and believe that should be saved exclusively for counsel and the mediator. The mediator's leadership role is about recognizing these unique challenges and what effective approach may be appropriate and work best. Survivors and entity representatives must have the courage to deal with tough direct conversation that benefits all involved. It is human nature for mediators to take personal life experiences and ingratiate them into the resolution role. We enter the parties' story at the end of theirs.

It's the mediator's role not to have bias in the story, but rather to have an open mind. Learning about the victims in their present-day world shows the ability to gain trust in the mediator, which sets the table for settlement. Acknowledging a survivor's courageousness to tell their story, over bottling up their experiences inside, instills their confidence. The notion of a perpetrator, dead or alive, not getting away with their inappropriate actions is the justice survivors seek for years.

Defending sexual assault cases is an alignment of zealous advocacy and compassion. Entity defendants focus on notice, the inability to link causation to alleged events, keeping distance from the perpetrator, and reminding the mediator about apportionment. Plaintiffs present evidence on mandatory reporting based upon the law at the time and what could have been done to prevent unwanted sexual behavior when challenging notice. All sides intend to influence verdict value. Sharing this information in mediation can tilt the scales, lowering or increasing demands and offers, and the mediator's role is to determine whether each side has the admissible evidence to support any and all positions.

In AB 218 sexual assault cases, survivors are adults asserting sexual assault claims from childhood. Voluminous multi-party claims brought against the perpetrators and entities are thematic in nature yet have varied levels of individual value. Strategic planning by the mediator includes hosting lawyer insurance mediations to categorize value levels before dividing settlement proceeds. Convincing the parties for early focus groups and getting the lawyers to agree on which cases can be parameters for guidelines are the subject matter of these mediations. Defenses will include challenging the statute of limitations, the lack of any of the witnesses or representatives, and the faded memories of all involved. There is the argument of an appeal, the trend of increased jury verdicts, and the appeal expense and delays. Currently, on appeal argued by entity defendants is the law of use of public funds for private settlements, which can deter settlement discussions.

How lawyers negotiate and manage their client expectations, coupled with negotiating terms outside of dollars, are all part of the mediator's hurdles in achieving resolution. Survivors want certainty on the amount of their settlement proceeds and when there will be an entity governing approval and disbursement of funds. A mediator can create initial certainty and trust by asking during the mediation, prior to the commencement of dollar negotiation, for a commitment from defense on the next available agenda meeting dates for governing approval.

The mediator's goal is to resolve any case on the day of mediation. In sexual assault mediations, it's key to know if the survivors are psychologically ready to resolve their case, and if the lawyers have set the table for settlement authority. Once all nods are given in favor of moving forward, it is for the mediator to share their dedication to resolving the case for all concerned, and if the case doesn't resolve at the initial mediation, they plant seeds for future settlement. This translates to mediator follow-up, with a road map of what that may look like at the end of the mediation day. At every point in mediation, the mediator's goal in these sensitive matters should be establishing the trust of both parties and communicating that the need for justice and closure on all sides is important and understood.

Janet Rubin Fields is a mediator at Judicate West. She can be reached at jrfields@judicatewest.com