Two cases played out in U.S. courtrooms this week that can best be summed up in the word “evil.” One is the sentencing hearing for sports doctor Larry Nassar, where dozens of women are describing the impact of his sexual abuse on their lives. The other is the arraignment of a couple who have been torturing their children in secret for decades. In both of these cases, adults abused minors for years, without anyone stopping them. We shake our heads and think it’s “unbelievable” that this could have gone on undetected for so long. But in both cases, there were clues that all was not right, and people ignored the clues as “unbelievable.” It was unthinkable that a revered expert who helped Olympic athletes could be molesting his patients. It was unthinkable that parents could be starving their own children, chaining them to their beds.

It reminds us that evil can be beyond our capacity to imagine. It reminds us that white, middle-class, suburban Americans are capable of perpetrating enormous wrongs on other human beings, for years, while outwardly displaying some normal behavior. It reminds us that evil can remain hidden for years.

The lesson to take from this is not to suspect our health care professionals and quiet neighbors of mischief. Another case in the news this week reminds us that at the other extreme are people who allege evil activity where none exists – the man who called 911 to report a horrific crime that had never occurred. Ironically, in that case, authorities did take the “call for help” seriously, with the result that police killed a man they thought was a murderer, who turned out to be completely innocent.

The fact is that we humans are not always able to recognize evil, let alone stop it. The only one who can overcome evil is Jesus Christ, and he instructed us to pray that we be delivered from it. St. Paul encouraged us to “overcome evil with good.” First we have to believe it’s there.

Trying to Add a Provision that Wasn’t in the Mediated Agreement

The parties to a divorce, both represented by attorneys, reached an agreement in mediation and placed it orally on the record, stating that it was “final and binding.” While subsequently drafting the judgment of divorce, Husband’s attorney requested a clause that the parties had agreed to during the mediation. Wife’s attorney initially consented, then refused. The trial court was affirmed by the Court of Appeals: once a “final” agreement is reached, additional terms cannot be added to the judgment unless there is “definitive evidence” that both sides agree. (See Amante v Amante, No. 331542, Court of Appeals unpublished case, June 20, 2017)

In effect, the Wife’s attorney was permitted to change his mind — and/or the Husband’s attorney was punished for neglecting to include the provision in the mediated agreement. There seems to be no dispute that the parties agreed on this point during the mediation, and confirmed it in an email exchange between the attorneys afterwards. The disputed term concerned spousal support. In mediation, both attorneys agreed that spousal support would not be awarded because there was not much disparity in income between the spouses, but their “final” mediation agreement did not mention spousal support either way. Wife’s attorney affirmed in a subsequent email exchange with Husband’s attorney that “spousal support is forever barred,” and even submitted to Husband’s attorney a proposed judgment that included that assertion. But, prior to entry of the judgment, Wife’s attorney emailed Husband’s attorney that the provision barring spousal support was not authorized by his client, and was his unilateral mistake. Husband’s attorney tried several arguments to persuade the court that the statement should be included in the divorce judgment, to no avail.

One wonders whether the mediator raised the question of spousal support with the parties as they were drafting their agreement — “You agreed that there won’t be spousal support here; do you want your agreement to say anything about that?” That question might have triggered a discussion that would have either (1) reminded Husband’s attorney to include the assertion in their agreement, or (2) elicited the misunderstanding between the Wife and her attorney. Either way, it might have avoided all the subsequent litigation.


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.





MSU Mediation Ends

Mediation of federal lawsuits between MSU and women who were victims of Larry Nassar is complete. The parties agreed back in August to three months of mediation. One of the plaintiff attorneys, Mick Grewal, stated then that they hoped to receive sexual abuse counseling for the victims, as well as changes in policies and procedures at MSU. The mediator, Grand Rapids-area attorney Jon Muth, is one of the most well-respected mediators in the state. He was a logical choice for this tough assignment.

Mediation ended recently, and the plaintiffs got at least one of their wishes: the MSU Board of Trustees announced today that it has set up a $10 million fund for counseling and mental health services as part of its “commitment to support Nassar’s victims.” Simon said this was the first board meeting after the mediation ended, implying that the board today ratified offers its representatives made in the mediation. (The actual terms of a mediated agreement are typically confidential.) MSU President LouAnna K. Simon also announced in an email to “the MSU community” a review of MSU policies and procedures, although she did not say that any changes had  actually been made. She referred readers to MSU’s “Our Commitment” web-site, which headlines that an independent investigation determined that MSU is compliant with Title IX requirements.

The end of this mediation, and the ratification by the Board of Trustees, by no means ends the conflict between MSU and the women abused by Nassar. President Simon apologized during the board meeting this afternoon, but some women criticized it. “I do not feel that the apology from Lou Anna Simon was heartfelt,” Kaylee Lorincz, one of Nassar’s victims, said after the meeting, according to the Lansing State Journal.  As with all public apologies, and especially when there is ongoing litigation (of dozens of cases filed in state court), President Simon must walk a fine line in what she says in her apology. However, the first element of a good apology is to take responsibility, and MSU has yet to do that publicly. In her letter today to the MSU community, Simon quoted from the statement of its outside attorney, Patrick Fitzgerald: “The evidence will show that no MSU official believed that Nassar committed sexual abuse.” That may indeed be the problem: the young women were complaining to various MSU officials, and no official believed them.


Matt Lauer Apology Gets a B+

Matt Lauer, the 20-year host of the Today show, issued an apology today after being fired from NBC News yesterday in response to allegations of sexual harassment. The apology isn’t too bad. It includes responsibility and regret, as well as some thoughtful phrases like, “I realize the depth of the damage and the disappointment I have left behind …” and the need for “time and soul-searching.”

But one part of it made me wince: “Some of what is being said about me is untrue or mischaracterized.” An apology isn’t the place for defences or clarifications. The time for that is after the apology is accepted, not in the midst of the apology itself. Inserting it undercuts the sincerity of the apology; just how much of it are you sorry for?

I had already decided to rank this a “B+” when I read a post on Salon giving it that grade. Author Mary Elizabeth Williams contrasts the Lauer apology favourably with other flawed media apologies we’ve heard in the last month, but laments that no one apologizes until an accuser has the courage to come forward. The “Weinstein effect” has prompted many victims of sexual harassment to come forward, but wouldn’t it be nice if it prompted some perpetrators to go public before their victims do?


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