Good advice on how to say sorry

December 30, 2021 – 2:35 pm

I often blog about public apologies–the Washington Post’s list of top ten celebrity apologies for 2021 is a treasure trove–, but what we really all need help with are private apologies, the ones we need to make to friends and colleagues as we go through life. A podcast on NPR, “Life Kit: How to say sorry,” succinctly summarizes both what to say, and what not to say.

The advice comes from Harriet Lerner, a clinical psychologist who has written a book about apologies. First, some things not to do: no apology should contain the word “but,” an observation I learned from Peacemaker Ministries decades ago that bears repeating. She also discourages “over-apologizing,” making too big of a deal over a small offense. She reminds us not to make the apology about ourselves, and to listen deeply to the hurt party’s anger and pain so we can express how we understand the impact of what we’ve done.

“Understand that, for something serious, an apology is a long-distance run.” This a wonderful metaphor for the time it may take for an apology to take root. Indeed, this is why Peacemaker Ministries recommends that the final step of our apology is to “allow time.”

Indeed, the celebrity apologies fall short for some of the reasons Lerner identifies: the offender fails to acknowledge the offensive behavior, and/or the apology is addressed to “anyone I may have offended,” making the apology seem to blame the offended party/parties.

The main point is that it is difficult to do apologies well, and it’s worth it to take some time to think ahead about what to say, and what not to say.

By abfifer | Posted in Apologies | Comments Off on Good advice on how to say sorry

Should Christian Organizations Use NDAs?

December 11, 2021 – 4:18 pm

In my post dated November 27, 2021, I addressed some of the problems with Non-Disclosure Agreements (NDAs). In this post, I want to examine their role in the church. Many Christian organizations – churches, ministries, parachurch organizations – have resolved disputes with claimants by requiring them to sign an NDA. The same concerns about NDAs identified in secular settings pertain to the church – and there are other concerns as well. Should Christian organizations be using NDAs?

The biggest complaint about NDAs is that they permit abusers to keep abusing. In the church, a glaring example of this is the Catholic Church’s settlement of complaints about priests abusing minors, where victims or their families were required to sign an NDA in exchange for a financial settlement, then the bishop re-assigned the offender, who offended anew. The families were not permitted to complain or warn anyone, because they had signed an NDA. U.S. Catholic bishops reversed course in 2002, adopting a policy forbidding confidentiality and non-disclosure agreements in financial settlements unless the victim requested it. That left pre-2002 claimants uncertain as to whether they could speak up.

NDAs are still common on the Protestant side. An NDA featured prominently in the Ravi Zacharias scandal; a woman abused by him settled a lawsuit in 2017 that included an NDA that prohibited her from warning other victims. Although Ravi died in early 2020, his estate refused to release her from the NDA, preventing her from participating in the subsequent investigation into his widespread sexual abuse. It’s an example of the durability of these provisions – they can gag a party for life.

According to Christianity Today magazine, NDAs have been used by prominent churches and organizations to protect leaders accused of spiritual, sexual or other kinds of abuse, including Willow Creek, Mars Hill, Dave Ramsey Ministries, Cru, and Acts 29 (“NDAs Kept These Christians Silent. Now They’re Speaking Out Against Them,” July 7, 2021). CT reports that many churches and ministries have NDAs in their employee handbooks.

 

Has anyone thought biblically about NDAs?

There is certainly a place for confidentiality in the church. Proverbs 17:9 notes that it is loving to “cover over an offense,” whereas “whoever repeats the matter separates close friends.” But we are also exhorted to address sin (Matthew 18:15-17, Galatians 6:1, I Timothy 5:20). So if a church leader hears an accusation against a third party, should the church leader “cover over” the offense, or address it as sin? In order to determine whether there’s a sin that needs rebuke, it seems like the accusation at least deserves an investigation. When a church or ministry is sued, it naturally rushes to protect, and to be skeptical, if not dismissive, of the complaint. But at some point shouldn’t it do some serious self-examination as to whether there is any truth to the accusation? Christians of all people should be aware of our blind spots. Jesus warned us about neglecting the logs in our own eyes (Matthew 7:3). Are Christian defendants using NDAs as a way to avoid self-examination? “Those who conceal their sins do not prosper” (Proverbs 28:13).

There’s something troubling about promising never to mention a person’s bad behavior in exchange for money. This is, of course, how lawsuits are settled — parties agree to this to avoid a public trial where their own credibility and lifestyle will be challenged and exposed. But it shows how lawsuits are the wrong vehicle for addressing sin in the church. Paul warned Christians not to sue one another (I Corinthians 6:1-7), and now we see another reason why: when victims of abuse sue their offender, or his organization, the lawsuit is settled when the offender buys their victims’ silence.

NDAs also have the effect of compelling lying. An employee who is dismissed as a whistleblower and subsequently bound by an NDA is prohibited from telling potential employers the reason for leaving her previous employment. Either she gives the standard line, “I can’t talk about it” – words that are a red flag that she’s gagged by an NDA, and are not helpful to potential employers – or she says something untrue so as not to violate the NDA. Some NDAs prohibit disclosing that there’s an NDA, so the party can’t even explain why they can’t talk about it. If the offender leaves the church or ministry with an NDA in place, and a subsequent church or potential employer inquires about the person, the ministry cannot disclose the real reason for the person’s departure; that may not be lying, but it’s not telling the truth either.

Another implicit effect of NDAs is to prevent victims from learning about other victims. The plaintiff may not know whether others have been injured, and does not know their identities, so cannot gain support or solace from others who have experienced similar trauma. Families of the young victims of sexual abuse at Kanakuk Kamps are publicly calling on the Kamp leaders to release victims from their NDAs so they can “seek healing by connecting with other victims and sharing their stories,” which the NDAs currently prevent them from doing. The online petition includes over 25,000 signatures.

There are also aspects of NDAs that could be unbiblical:

  • Preventing a party from discussing the matter with a counselor or therapist is contrary to Proverbs 11:14 and 15:22, which applaud consulting “a multitude of counselors.”
  • Preventing a party from discussing the matter with their spouse controverts Matthew 19:5-6, because the “two become one” in marriage.
  • Preventing a party from discussing the matter with their pastor or spiritual advisor hinders the very role of the pastor, deacon and overseer – see, e.g., I Timothy 4.
  • Extending the NDA beyond the life of one party, as in the Ravi Zacharias case, seems unconscionable; even that most sacred of covenants, marriage, terminates upon the death of one of the parties. Romans 7:2-3.

 

Banning NDAs

Because NDAs have been used to conceal abuse by pastors, missionaries and other church leaders, there is an effort in the church to ban them altogether. Calling themselves “#NDAfree,” this movement invites Christian organizations and churches to pledge “to be free from NDAs.” This may be difficult when an insurance company is involved, as insisting on an NDA may be its standard practice when it’s paying.

Another option would be for Christian parties simply to reduce the scope and extent of NDAs. Instead of unthinkingly following the world’s example, Christians ought to be leading the way in designing reasonable, caring provisions that strike the balance between maintaining needed confidentiality while respecting both parties.

NDAs are not “bad” or “wrong,” but they are fraught. Christians should be careful that they’re acting out of love, more than out of fear or self-protection, in using them.

 

By abfifer | Posted in Christian Lawsuits | Comments Off on Should Christian Organizations Use NDAs?

Case Evaluation is Changing

December 4, 2021 – 9:53 am

The Michigan Supreme Court has adopted changes to the case evaluation process, over strong dissent.

Case evaluation is a settlement technique, perhaps unique to Michigan, where attorneys present summaries of their case to a panel of three disinterested attorneys who come up with a number (“award”) representing the panel’s determination of the case’s worth. That number is designed to give the parties a more realistic view of their case, and possibly a settlement figure. To incentivize parties to accept the case evaluation award, a party must pay sanctions if it rejects the case evaluation figure but obtains a judgment within ten percent of the case evaluation award. MCR 2.403.

Until 2000, this process was called “mediation.”

By statute, all medical malpractice cases as well as tort cases in which the claimed damages exceed $10,000 are subject to this process (still called “mediation” in the statutes). See MCL 600.4901 et seq.; MCL 600.4951 et seq. Many courts refer all their general civil cases to case evaluation.

When case evaluation was introduced to Michigan trial practice in the 1980s (having started in Detroit in the late 1970s), it was highly effective at settling cases. The acceptance rate was something like 80%. To hear seasoned practitioners tell it, that’s because the panels consisted of the leading litigators in their fields. It was hard to argue with the experts, who knew the likely verdict value of these cases better than anyone, because they tried these cases all the time.

But at least three things happened to change this. One is that the desire for panels with decades of experience meant that they were comprised of older white men; women and minorities were not getting appointed to panels. So the eligibility rules were relaxed to make it easier for newer attorneys to get appointed. Some practitioners will tell you that this fatally weakened the reliability of case evaluation awards, because the panels included people with as little as five years of trial experience.

Another change is simply fewer trials. It became increasingly difficult to predict the value of a case, because fewer went to verdict, and settlements are typically private. The panel’s award number seemed more arbitrary, less a prediction of what a court might award and more a number that the panel thought the parties might settle on. A third change in Michigan civil trial practice is the advent of mediation, enshrined in its own Court Rule, MCR 2.411, since 2000. Perhaps because the parties are present during mediation, it has become an effective case settlement process, reducing the need for case evaluation.

The result is that, in this century, the acceptance of case evaluation awards in some jurisdictions is below 15%. That’s not a very high rate for what is a rather complicated process that requires quite a bit of work on the part of court administrators. In fact, the 13th Circuit Court (Grand Traverse, Antrim and Benzie Counties) dispensed with mandatory case evaluation several years ago.

So the State Court Administrative Office has been exploring over the last ten years whether case evaluation should be altered or even dispensed with. In a 2011 study of more than 3,000 lawyers and judges, it found that case evaluation added several months to case disposition times, that a significant majority of lawyers felt the process was less valuable than mediation, and that judges rated the process more favorably than lawyers. In a 2018 follow-up study, support for case evaluation had eroded further. A follow-up survey recommended that case evaluation should become voluntary and that sanctions should be removed. (Supreme Court Order, p. 8)

A Case Evaluation Court Rules Review Committee convened by the State Court Administrative Office met in 2019 and recommended that the Court remove the sanction provisions, so that parties are not penalized for rejecting an award and proceeding to trial; and permit the parties to waive participation in case evaluation if they stipulate to another ADR process. The Supreme Court adopted these recommendations by order dated December 2, 2021.

But not without dissent. Justice Viviano, joined by Justice Zehra, opposed this move on several grounds. One is that, by permitting parties to opt out of case evaluation in favor of another ADR process, the court rule now conflicts with the statutes, which make case evaluation mandatory. Another is that many judges still believe that case evaluation, as is, is an effective method for resolving civil cases, especially when compared with the more expensive process of private mediation. The dissent also questioned whether now is the time to weaken case evaluation when many trial courts face a pandemic-induced backlog of cases.

Although some judges associations predict that these rule changes will add costs and cause significant delays in resolving cases, I suspect that trial practice will adapt to the new litigation landscape. Lawsuits do not need case evaluation in order to settle; they settle at high rates in states that do not have case evaluation. Cases settle because litigants prefer the certainty of a negotiated compromise over the risk of trial, and that has not changed.

By abfifer | Posted in Uncategorized | Comments Off on Case Evaluation is Changing

Non-Disclosure Agreements: Are Mediators Unwittingly Perpetuating Abuse?

November 27, 2021 – 1:56 pm

Non-Disclosure Agreements (NDAs) are contracts binding parties to keep quiet, often to keep quiet about their dispute and its settlement. NDAs have come under increasing scrutiny of late, because they have permitted wrongdoers to go on to harm others. One famous example is Hollywood producer Harvey Weinstein, who was sued several times for his sexual abuse, paid off his accusers privately in exchange for an NDA, then went on to abuse other women.

Of special concern is how NDAs have been used in the church to protect abusers, sexual and otherwise. The most famous are the cases in the Catholic church involving clergy abuse of minors, where families who sued had to sign an NDA in order to receive any monetary settlement from the church. Then, in many cases, the offender was re-assigned to another parish where he abused other children. The victims’ families were not permitted to complain or warn anyone, because they had signed an NDA; often, the NDA requires forfeiture of funds received if that party reveals anything. The role of NDAs in Christian cases will be addressed in a future blog post.

Also of special concern is the role that mediators play in facilitating an NDA as part of the settlement agreement. Do parties really know what they are agreeing to do? This post examines NDAs, then considers the role of mediators in facilitating them.

NDAs were developed by lawyers a few decades ago to protect trade secrets when an employee left a technology company. But now they’ve expanded into just about all employment separations and other legal settlements (“outcome NDAs”), and are often expected at the start of employment as well (“entry” or “preemptive” NDAs). An NDA is a confidentiality agreement; both parties mutually promise not to tell anyone else about information related to the dispute or its settlement. Plaintiffs agree to them because they don’t want a reputation as a troublemaker (whistleblower, accuser, etc.) while employers agree to them in order to protect valuable employees that may or may not be wrongdoers (sexual harasser, bully, racist, etc.).

NDAs can be very broad. They typically address:

  • Whom can be told – NDAs may prohibit disclosure to family members, to clergy, to therapists, as well as to former colleagues
  • What can be told – NDAs may prohibit disclosure of any information related to the other party (including information that had nothing to do with the dispute). They may prohibit disclosure of the existence of an NDA.
  • When it can be told – Some NDAs have no end date – they continue into perpetuity.
  • Consequences of disclosure — They may have a penalty clause, requiring payment if the party breaches the NDA, as a way to ensure that the party adheres to it.

NDAs help settle lawsuits, so they may be beneficial in some cases. But critics argue they are being used to protect abusers, hide wrongdoing, and hinder healing and reconciliation.

Criticism of NDAs

Protect Abusers: One obvious concern about NDAs is that they permit wrongdoers to abuse others. This has been revealed in the cases of Harvey Weinstein, of entertainer Bill Cosby, of ministry leader Ravi Zacharias, and in numerous cases involving Catholic priests. Employers argue that, unlike these cases, employers don’t always know whether the accused really is a problem or whether the claimant is truthful, so they need the NDA to protect them.

Re-victimize Victims: Lawyers sometimes encourage NDAs as a way for the plaintiff to get “closure” and move on. Dr. Julie Macfarlane, law professor at University of Windsor, vigorously rejects this, noting that “the threat of legal consequences of breaching the gag order hanging over the victim forever continuously revictimiz[es] them.” (“Buying Silence with a Bluff: How NDAs Exploit Litigants, With and Without Counsel,” Slaw online legal magazine, June 2021). This is especially true in cases where the NDA prohibits disclosure even to a spouse, minister or counselor, and when it extends into perpetuity.

Lack of Informed Consent: There may be a power imbalance in these cases, that leads to plaintiffs agreeing to an NDA without fully appreciating its ramifications. Even when parties are represented by lawyers, they are not always offered alternatives to an NDA, such as a one-sided confidentiality agreement that would protect the claimant but not the wrongdoer, or negotiating the terms of the NDA. Claimants who are not represented may believe the employer’s insistence that an NDA is the “only” way to settle their case; many claimants report feeling pressured into agreeing to the NDA.

Are NDAs enforceable? No one seems to know of a case where a court enforced an NDA in a settlement, beyond trade secrets. Like non-compete agreements, NDAs are more likely to be enforced if a court deems them “reasonable,” i.e., appropriately restrictive in time, geography and content. Not waiting for court decisions, several states have passed statutes in the last couple years prohibiting NDAs in cases involving sex harassment and discrimination, including California, Oregon, New York and New Jersey. Not willing to wait for a court determination or a statute, Prof. Macfarlane is encouraging a ban on NDAs with a campaign called “Can’t Buy My Silence.”

While Prof. Macfarlane maintains that the threat of having to sign an NDA inhibits victims from filing complaints, others suggest that they benefit complainants. Attorney Deborah Katz, who has represented “thousands” of sex harassment complainants, believes that because NDAs protect the privacy of companies, companies are more willing to negotiate with complainants and not force them to litigate.

 

Mediators facilitating NDAs

Are mediators unwittingly perpetuating abuse or its cover-up by facilitating NDAs? I know a mediator who facilitated an NDA in a whistleblower case, only to learn a couple years later that the whistleblower was indeed telling the truth about the CEO, who continued to inflict misery on people inside and outside the company. While mediators do not decide whether parties are being truthful, we are responsible for ensuring that each party has sufficient information to make good decisions. The first Standard of Conduct is for mediators to conduct the mediation “based on the principle of party self-determination, … in which each party makes free and informed choices…” (Standard I, Model Standards of Conduct for Mediators) This is especially important when a party is unrepresented. Claimants frequently report that they did not realize the implications or extent of the NDA, and/or did not know they had alternatives, even when they were represented. So, when an NDA is on the table, mediators may want to pay close attention to the client, to ensure they understand the full ramifications of all the terms of the NDA. Mediators unfamiliar with NDAs might accept attorneys’ insistence that this is the “only” or “standard” way to settle a case, so mediators need to do thorough reality-testing with the attorneys. Mediators can ask questions of both parties and counsel to elicit concerns and help negotiate terms, including considering confidentiality provisions less onerous than a full-fledged NDA. Mediators can caucus with both attorneys separate from the parties to reality-test the enforceability of NDAs.

Conclusion

NDAs, like other legal remedies, can be helpful but can also cause further damage. Mediators may want to take extra steps to ensure that the claimant personally understands all the long-term ramifications of an NDA, and possible alternatives, before agreeing to one.

The role of NDAs in Christian cases will be addressed in a future blog post.

By abfifer | Posted in Mediation | Comments Off on Non-Disclosure Agreements: Are Mediators Unwittingly Perpetuating Abuse?

Kentucky Court of Appeals Enforces ICC Clause

November 19, 2021 – 4:45 pm

The Kentucky Court of Appeals has ordered enforcement of a clause compelling the parties to med/arb through the Institute for Christian Conciliation. The case (Whitefield Academy, et al v Alford, et al, Case No. 2021-DA-0678-I, issued November 4, 2021) involves a Christian school in Louisville, Ky. When the parents enrolled their daughter in the school in 2016, the mother signed the school’s standard enrollment agreement, which included an ICC clause. Both mother and daughter signed the form for each subsequent school year until the daughter was expelled in early 2020. The parents believe the school discriminated against their daughter in expelling her, and sued the school in state court for breach of contract, negligence, intentional infliction of emotional distress, defamation, and invasion of privacy. The school asked the court to refer the case to the ICC pursuant to the contract clause.

The trial court determined that there was not a valid agreement to arbitrate, because the clause referred to the Rules of Procedure for Christian Conciliation, but the family did not receive a copy of the Rules.

On interlocutory appeal, the Court of Appeals reversed. The court construed the clause under the Federal Arbitration Act, and determined that the ICC Rules of Procedure were incorporated by reference, just as procedural rules of an agreement to arbitrate “are routinely incorporated by reference, and subsequently enforced by courts.” The Court noted, “Here, the plain terms of the enrollment agreement manifest a clear intent that the parties will arbitrate disputes.” (p. 18)

In addition to naming the school as a defendant, the parents also sued two school officials individually. The Court of Appeals ruled that the arbitration clause was generally applicable to the school officials as well, even though they did not personally sign the enrollment agreement.

Left unanswered were the questions of whether the student herself, who is a minor, as well as her father, who never signed the agreement, are also bound by the arbitration clause. The appellate court remanded those issues to the trial court. Two additional defendants, who allegedly published a story about the expulsion, were determined to be outside of the arbitration agreement, and the case against them can continue in the circuit court.

The Kentucky Court of Appeals reached the correct decision. The family offered no reason why the ICC clause should not be enforced. It is interesting that the Court treated the clause as if it referred only to arbitration, whereas it specifically requires that the parties first seek “biblically based mediation,” and proceed to arbitration only if “resolution and reconciliation do not result” from mediation.

Whoever drafted the ICC clause in the School’s enrollment agreement did not strictly adhere to the “Model Med/Arb Clause” long promoted by the ICC. Had they done so, they would have removed the basis for the trial court’s decision. The model clause states, “We have received and read” the ICC Rules “which are incorporated into this agreement by reference…” Since the enrollment agreement is completed online, the School could simply have hyperlinked the Rules to it, as the Court noted. This is what the ICC General Conciliation Clause now recommends.

The Whitefield version of the med/arb clause includes some other problematic departures from the model clause recommended by the ICC. For example, as the Court noted, the Whitefield version inter-changes the words “arbitrator” and “arbiter,” and in one place refers to “a panel of the arbitrator.” Selection of the arbitrators includes two partisan arbitrators who select the neutral – not a process preferred by the ICC.

This family may have some legitimate claims against the school, but there is no reason why they cannot find justice in a private Christian process. And they already agreed to it.

By abfifer | Posted in Christian Lawsuits | Comments Off on Kentucky Court of Appeals Enforces ICC Clause