MSU Mediation Described

Former Michigan Supreme Court Justice Robert Young, who was appointed by Interim MSU President John Engler to represent MSU in defending lawsuits brought by hundreds of people abused by former MSU sports doctor Larry Nasser, described yesterday more about the mediation that settled those lawsuits last week. He said in an interview with Tim Skubick that the plaintiffs initially demanded “over a billion” dollars, but that the $500 million settlement figure was the right number. He wouldn’t explain why it was the right number, “but I’m confident really there was a very good basis for that number.”

Parties to mediation usually do not reveal details of the mediation, like a party’s opening demand. In fact, Michigan Court Rule 2.412 declares that all statements made in mediation are confidential, unless they fit into an exception. Justice Young is obviously aware of confidentiality (“I can’t tell you why”) but has a narrower view than most of what is and isn’t confidential, thus giving us outsiders a peek into an important mediation.

MSU Mediation Ends With Agreement

The settlement announced yesterday between Michigan State University and 332 assault victims of MSU sports doctor Larry Nassar has to be one of the largest mediated settlements ever: $500 million. The parties whose lawsuits were in federal court attempted mediation last year, reaching a partial agreement. After Nassar was sentenced this past January, all of the parties agreed to mediation with a different mediator, former federal judge Layn Phillips. The mediation lasted just a couple of weeks.

The settlement involves only money. While survivors spoke with disappointment afterwards about other goals not met – from changing the MSU culture to receiving an apology — , in the end they must have decided to pursue those goals outside of mediation, rather than prolong the mediation.

One question on Michigan taxpayers’ minds: where will MSU come up with the money? Is it possible that the University has insurance coverage this broad? Or will it, as a public institution, look to the State for help?

Or is MSU hoping to raise the money from alumni? Is it just a coincidence that we received a phone call today from MSU asking for a donation? Having an alum in the family, we contribute annually – every December. So why is MSU calling us in May, just days after promising a half billion dollars to lawsuit plaintiffs? The student caller insisted there was no connection — of course.

Court-Ordered Apologies

What is the value of a judge-ordered apology? Last year, we considered a judge’s order that a state official apologize to Flint residents for her role in perpetuating the Flint water crisis.

This week, another Michigan judge has ordered a defendant to apologize, but this time the recipients of the apology are court staff – and the judge himself. The Midland Daily News reports that Midland County Circuit Court Judge Michael Beale ordered Chad Sandlow to write letters of apology to two deputies as well as the sentencing judge himself, as part of his sentence for causing a courtroom scuffle a few months ago. While appearing before Judge Beale in February to be arraigned for his son’s truancy, Mr. Sandlow reportedly refused to remove his hat or approach the bench, then failed to cooperate with court officers as they arrested him. This week he was sentenced on two counts of resisting and obstructing.

An integral component of an effective apology is remorse, which is rarely genuine when a party is compelled to apologize – think of a child who is ordered by an adult to apologize to a sibling. When a court orders an apology, there’s little likelihood of sincere remorse, and more likelihood that the apology is a form of punishment. But does it still have some value?

My parents used to order me to my room, after a sassy remark, “until I was ready to apologize.” Maybe the judge could try a version of this by ordering Mr. Sandlow to stay in jail until he’s ready to apologize. Would that at least make it voluntary? A genuine apology has to come from the heart, and the court cannot order a defendant to have a change of heart. Mr. Sandlow will have to decide that on his own – whether or not he writes those apologies.

Southern Baptist Leader’s Apology Falls Short

Dr. Paige Patterson, president of Southwestern Baptist Theological Seminary in Fort Worth, Texas, and influential leader in the Southern Baptist Convention, has been in the news lately for his views on biblical commands for wives who are victims of domestic violence, and other comments he has made about women over the last twenty years.

Last week, he issued a statement of apology; here’s the heart of it (click here for the full text):

“I wish to apologize to every woman who has been wounded by anything I have said that was inappropriate or that lacked clarity. We live in a world of hurt and sorrow, and the last thing that I need to do is add to anyone’s heartache. Please forgive the failure to be as thoughtful and careful in my extemporaneous expression as I should have been.”

It’s no wonder that, as one Baptist woman commented, the apology “felt incomplete.” Recognizing that it’s difficult to do public apologies well, and that we all need help crafting effective apologies, it’s worth analyzing why this one doesn’t do the job. A couple of word choices stand out:

  • “by anything I have said” – Either Dr. Patterson is unaware of what he said that was offensive, or he disagrees, but in either case, the vagueness of this phrase leaves his audience wondering whether he “gets it.” One of the “7 A’s of Confession” of Peacemaker Ministries is to “Admit specifically” – the apology needs to express specifically the harmful action done. This apology does not do that.
  • “my extemporaneous expression” – This sounds like an excuse; the implication is that he shouldn’t be held too responsible for comments that he made on the fly, that he didn’t have time to reflect on. What the speaker intends as an explanation, is heard as an excuse. Excuses do not belong in apologies, and serve to undercut them. A good apology invites the listener to ask questions, and only then may the speaker offer an explanation. This observation goes to his comment about translating a Hebrew term as well — almost sounds like he’s blaming the listener for not understanding his goal.

A couple of other things make this an ineffective apology:

  • His apology is to “every woman,” but men were also hurt by his actions, as indicated by the letter sent to the Seminary board regarding Dr. Patterson. Another of the “7 A’s of Confession” is to “Address everyone involved;” he missed half the audience.
  • Where are the consequences? A good apology includes some indication of how the speaker will rectify the wrong. He promises to pray, but that’s not enough to make this apology work. Elsewhere it’s been announced that he is calling for a special meeting of the board of trustees of his institution, which may result in more follow-up, but it would have been good to include in the apology any plans to, as the “7 A’s of confession” call it, “Alter behavior.”

It takes courage and effort to make a good apology, the kind that brings healing (see James 5:16). Dr. Patterson made the effort, and we can all learn from it.

Mediated Agreement Fails When Condition Precedent Fails

In Hernandez v State Automobile, issued last month by the Michigan Court of Appeals, Plaintiff sued her automobile insurance company to get past and future personal-injury benefits. Following a couple of mediation sessions, the parties reached an agreement via emails with the mediator. It included the proviso that the agreement was contingent on the approval of the Michigan Catastrophic Claims Association (MCCA). The document formalizing their agreement was never signed.

The MCCA refused to approve the agreement, because surveillance indicated that the plaintiff was not as injured as she claimed. Defendant retracted the agreement, and plaintiff sued to enforce it. The trial court determined that defendant had waived the condition precedent by continuing its surveillance of the plaintiff after they had reached the agreement; defendant appealed.

The Court of Appeals’ first question was whether the parties had reached an enforceable agreement; the court agreed with the trial court that they had. Refuting the contention that a party must sign an agreement in order for it to be valid, the court noted that the attorneys’ names at the end of their emails satisfied the subscription requirement of MCR 2.507(G), citing Kloian v Domino’s Pizza LLC, 273 Mich App 449, 452; 733 NW2d 766 (2006), a case which did not involve a mediated agreement.

As inked autographs become rarer, the Court has wrestled with the requirement in MCR 2.507(G) that to be enforceable, “evidence of the agreement is in writing, subscribed by the party against whom the agreement is offered or by that party’s attorney.” Do emails count as “in writing”? If so, how does the email meet the requirement that it be “subscribed”? The Kloian case attempted to answer this regarding negotiated settlements, if unartfully, and last summer the court applied it to a mediated agreement, ruling in Amante v Amante, (No. 331542, Court of Appeals unpublished case, June 20, 2017) that an email containing the attorney’s name was not a term of the settlement because the parties were not negotiating the settlement via email, having already reached a mediated agreement. So now Hernandez, while also an unpublished case, signals that email negotiations can result in an enforceable mediated agreement where the key provisions include the attorneys’ names.

The next question was whether the defendant had waived the condition precedent by continuing its surveillance of the plaintiff. The Court of Appeals, reversing the trial court, determined that defendant had done nothing to interfere with the condition precedent, so when the MCCA refused its approval, the agreement became invalid.

In the course of its analysis, the Court reviewed email and phone conversations between the mediator and the attorneys. Apparently no one objected to this. Perhaps the parties agreed in writing to waive confidentiality, a recognized exception under MCR 2.412(D)(1) – but it would’ve been helpful if the court had mentioned that they had done so.

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