According to this piece in the Philadelphia Inquirer, Kenneth Feinberg has been hired to mediate the civil claims against Penn State University as part of the Sandusky sexual predator scandal. According to the article:
“We are seeking to make sure we do the right thing in terms of providing a just outcome for the victims,” Penn State president Rodney Erickson said in a statement. “We hope to enable a process that will result in settlement of many of the civil cases so that the victims will not have to be drawn through the legal process.”
When the scandal was in full bloom, there was some talk about whether mediation would be appropriate for the civil cases, and my take has always been yes (shocker). The only reason I could think of for arguing that mediation is inappropriate is that Sandusky’s conduct needs to be aired in public to use as an example of how not to handle child abuse issues in the workplace. The university had a chance to stop a serial child rapist and failed to do so, and the public is well aware of this because of the criminal investigation, the Freeh Report and other things. The information is public enough.
David Hoffman at Concurring Opinions argues that one could read Feinberg’s retention in a couple of ways. One of them being:
Associating with Feinberg transmutes the human errors which enabled Sandusky’s crimes into a “disaster”, implying less particularized responsibility. Plaintiffs refusing to partake in the common pool can potentially be framed as selfish, grasping, etc.
I disagree with this uber-cynical view. Oftentimes child sexual abuse claims are very difficult to prove, and even when there’s enough information to support the notion that the sexual abuse occurred the facts can still be murky enough that there’s some doubt in the public as to what really happened. Negative reaction is typically associated with this “not quite sure what happened” narrative, and that’s not the case with Sandusky’s victims. They will be seen as most deserving if a settlement isn’t reached through the Feinberg talks. That said, I expect the plaintiffs to settle their claims so they can put this episode of their lives behind them.
Hat Tip – Concurring Opinions
I agree with Chelsea that the university obviously saw the possibility of settling privately, and out of the public eye of a trial, as being a huge motivating factor for pursuing mediation. However, I also think that as much as Penn State wants to mediate, the ball is still in the victims’ court. Given the information that would be available in a trial, the victims know that there probably is not a jury in the country that would side against them. Therefore, it would seem that the victims have quite a bit of leverage to be able to hold firm to whatever settlement amount they want, as they would almost certainly get the same, if not more, in a trial. I do also agree that the privacy of mediation could be good for the victims as well. I would be surprised if they want to continue to relive what happened and recount it in a courtroom. Also, as mentioned, although it appears like a slam-dunk case, you never know what could happen at trial. I think that settling, and trying to move on from the horrific events that occurred, would best serve the victims.
I may be cynical about Penn State wanting to mediate but I don’t think the university is really mediating to help the victims by allowing them to avoid being drawn through the legal process. Penn State is working to advantage themselves by mediating. I am sure they see mediation in their favor. First, they are taking “control” over a situation that they feel out of control in, due to public criticism. Second, I am sure Penn State wants as much privacy as they can get, of the settlement, and proceedings. Third, Penn State knows that if they go to trial a jury is most likely going to sympathize with the victims especially due to the high publicity of this case. Penn State is strategically working to use mediation for the advantages it has for them.