An Amazing Use of Mediation

The “mediation” between Michigan State University and victims of sports doctor Larry Nassar keeps unfolding in ways atypical of mediations. The latest irregularities were revealed last week: not only was the mediated agreement made public (rare, even in cases involving public entities) but it included provisions involving the Michigan legislature (possibly unique).

The settlement, reached in May and approved by the MSU Trustee Board in June, was made public when it was filed in US District Court in Grand Rapids on July 13, and is expected to be approved by Judge Gordon Quist this week.

According to mlive, it included this under a list of “conditions precedent”:

“Michigan Legislation.

(1) Michigan Senate Bill 872 (2018) either shall

(A) fail to be enacted into law because it is withdrawn, defeated by vote, or otherwise fails to pass, or

(B) be amended to reduce the timeframe to bring otherwise time-barred Nassar-related claims to 90 days following enactment of Senate Bill 872 (2018); and

(2) Michigan Senate Bills 875 (2018) and 877 (2018) shall fail to be enacted into law because they are withdrawn, defeated by vote, or otherwise fail to pass.

The parties agree that this condition has been satisfied.”

The agreement was thus tied to the actions of a third-party, which seems risky for an agreement of this magnitude. Because it was labeled a “condition precedent” in the agreement, I don’t think it was an attempt to “bind” a third-party to the mediated agreement, as some have argued. But, even though the agreement purported to have some level of confidentiality, if this condition were leaked to the Legislature, it may have felt pressured to act on pending legislation. Whether or not the Michigan Legislature knew about this provision, it cooperated with it – Senate Bill 872 was adopted after being amended as specified, and Senate Bills 875 and 877 have languished in committee.

Without getting into the politics, it’s a fascinating use of mediation.

 

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