The Dark Side of Confidentiality

Some of the women who are disclosing sexual harassment recently are breaching confidentiality agreements to do so. Last week, U.S. Olympic gymnast Mikayla Maroney revealed that she had reached a private settlement with USA Gymnastics regarding Larry Nassar last December, and Zelda Perkins disclosed that she reached a settlement with Harvey Weinstein years ago; in both cases, by speaking out now, these women violated promises not to disclose these settlements.

The suit that Ms. Maroney filed last week against USA Gymnastics is interesting in that usually the plaintiff is the person who did not breach confidentiality, who sues to enforce the confidentiality agreement. But in this case, Ms. Maroney presumably breached confidentiality when she tweeted about Nassar’s abuse in October; at that time, USA Gymnastics, far from threatening her to keep quiet, applauded her for speaking out. Now she claims that the non-disclosure and non-disparagement clauses were invalid under a California law that prohibits settlements in civil cases that could result in criminal sex offense charges. But if the clauses are upheld, she could be sued for more than $100,000 for violating the non-disclosure agreement, according to an Associated Press article by Michael Balsamo.

Why would a party agree to keep quiet about a perpetrator’s abuse? It sounds like Ms. Perkins feared Weinstein’s power, and admits that the whole process of negotiating a settlement was emotionally exhausting. In an interview with the BBC on December 20, she said their agreement required Weinstein to seek counseling, and she was supposed to attend the first session in case he denied he had a problem; but the counseling never happened, and she was too worn down to pursue it. Ms. Maroney says she needed money to pay for therapy, and the trade-off was to keep it quiet. USA Gymnastics counters that it was Maroney’s attorney who initiated the concept of confidentiality; if true, was it because that was the only way to entice USA Gymnastics to pay her something?

I haven’t heard that any of these sex harassment cases were mediated while the perpetrator was still active (Maroney’s settlement, as well as a more recent mediation between Nassar victims and MSU, occurred after Nassar was already behind bars), but if they were, is it okay for a mediator to facilitate an agreement that suppresses alleged criminal behavior? Michigan’s Mediator Standards of Conduct, in Section VII.A.4.a, encourage a mediator to discontinue the mediation “if a mediator believes that mediation is being used to further illegal or criminal conduct…” But if the defendant is denying wrongdoing, a mediator might be uncertain. If the defendant swears it’ll never happen again, the mediator might believe that there will be no “further illegal or criminal conduct.” And a confidentiality agreement about past sexual harassment isn’t directly “furthering illegal conduct,” in the same way as, say, an employer who continues employing under-age workers, or an agreement to defraud a third party.

Countering a mediator’s uncertainty about the appropriateness of such an agreement is the mediator’s confidence in party self-determination. Especially where parties are represented by counsel, and where a mediator has an opportunity to caucus with each side to explore all ramifications of their proposed settlement, a mediator might allow party self-determination to trump any doubts to the contrary. Still, it would be an unpleasant situation for a mediator.

This is the dark side of confidentiality, that a private settlement, enshrouded in confidentiality, protects a wrong-doer from exposure, allowing the harmful activity to continue. It also keeps other victims in the dark, each thinking she’s the only one. It may make sense to a plaintiff while in negotiations, but, at least for these women, it turned out to be too big a price to pay.

 

 

 

 

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