Accusers won’t ‘pause’ lawsuits
Attorneys agree to pursue a diocese mediation plan that lets suits continue
ALBANY — Attorneys for hundreds of people who say they were sexually abused by clergy and others associated with the Roman Catholic Diocese of Albany agreed Monday to move forward with a negotiated mediation plan that will also keep hundreds of Child Victims Act lawsuits moving forward — including some that are scheduled for trial in the coming months.
During a conference Monday with state Supreme Court Justice L. Michael Mackey, attorneys for the more than 400 plaintiffs rejected a request by the diocese’s attorney, Michael L. Costello, to “pause” the litigation in order to set up a mediation program. The attorneys noted that doing so would stop the pretrial discovery process, delay scheduled trials and make it less likely that the diocese’s insurance carriers would be motivated to aggressively resolve the cases.
Cynthia S. Lafave, an Albany attorney, said the attorneys for the accusers who have filed claims could not agree to support the mediation plan that had been put forth by the diocese last week. She noted that it called on the victims to sign releases in order to join a mediation process in which they would no longer have control over the outcome.
“Everyone has gotten to the point where they are in pretrial litigation or have a trial date,” Lafave told the judge. “A stay would give all the power back to the diocese at that point . ... (The diocese’s mediation plan) took the power and the voice away from the survivors.”
The attorneys agreed during Monday’s conference to move forward with an al
“A stay would give all the power back to the diocese at that point . ... (The diocese’s mediation plan) took the power and the voice away from the survivors.”
Cynthia S. Lafave, attorney
ternate mediation plan, but without a court order stopping the lawsuits from moving forward on a separate track.
“We have to proceed with litigation, and if the matter is mediated successfully during the course of litigation, so be it,” said Mitchell Garabedian, a Massachusetts attorney who represents victims suing the Albany diocese and who was involved with an $85 million sexual abuse settlement reached with the Boston diocese two decades ago.
Garabedian noted that many of the accused abusers, as well as victims and witnesses, are aged, sick or dying.
“Evidence is disappearing,” he told the judge. “We’re talking about irreparable harm here. We can’t get this back for the survivors. They need to heal through validation . ... Let us litigate and mediate and if the diocese needs to file bankruptcy at that point, fine.”
The mediation plan that began taking shape Monday would be similar to others that were used to settle cases with Catholic dioceses across the United States, including in California, to compensate victims of sexual abuse.
Costello said the Albany diocese would prefer to have the mediators be retired upstate New York judges who are “familiar with these cases . ... We believe that would give a sense of balance to all this.”
The attorneys for the accusers rejected that idea and said they would prefer to use officials with experience in handling sexual abuse litigation. They proposed Simone Lelchuk, a New York City attorney who has done extensive work with sexual misconduct funds, and George J. Silver, who retired last year as deputy chief administrative judge for the New York City courts and had presided in cases involving the Child Victims Act.
Costello and the plaintiffs’ attorneys subsequently agreed to negotiate the selection of the two mediators, who would begin the process of establishing how much money would be available to compensate victims. That fund, which would likely be hundreds of millions of dollars, would be funded by the 14-county diocese, its parishes and its insurance carriers.
The plan envisioned by the attorneys is for a high percentage of the roughly 440 victims who have filed claims against the Albany diocese to agree to take part in the mediation plan. In Boston, the agreement had required at least 79 percent of the victims to sign onto the mediation plan for it to be adopted. (Attorneys said all of those plaintiffs eventually took part in the plan.) There would still be an option for some victims to opt out and take their cases to trial or engage in their own mediation.
For those who agree to take part in the mediation plan, arbitrators would review each case and decide — based on factors such as the level of sexual abuse and the damage it caused — how much individual victims should be paid. There would be a point system and limits set on the minimum and maximum compensation.
“The biggest issue is the pot of money,” Jeffrey M. Herman, an attorney whose firm specializes in sexual abuse litigation, told the judge. “We sit down now immediately and we see if we can come up with a pot that makes sense for everybody. There’s no reason to stay these cases . ... It would be an outrage and an affront to my clients who have been waiting all this time to get to trial. They (the diocese) are here because we’re about to go to trial — that’s no mystery.”
Indeed, Albany Bishop Edward Scharfenberger has issued public statements recently saying that if the diocese is forced to go to trial in the sexual abuse cases, it would likely file for bankruptcy.
Last month, the diocese settled the first Child Victims Act case that had been scheduled for trial. The $750,000 settlement followed negotiations in which Costello, the diocese’s attorney, had warned the accuser, Stephen J. Mittler, that if his case remained on track for its July 25 trial date, the diocese would file for bankruptcy before a jury was picked, according to Matthew J. Kelly, Mittler’s attorney. The next trial is scheduled for early September. Costello expressed doubt on Monday that the mediation plan could be established before a jury is picked in that case. But attorneys for the accusers countered that if both sides began work immediately, including picking two mediators and establishing the amount of money that would be available, they could get it done.
With cases on track for trial, Herman said, it will create added pressure for the diocese’s insurance carriers to come to the negotiation table.
“Going to trial is motivation for the diocese and the carriers, so I think it makes sense to do this now but not have the stay,” Herman added.
Although Costello said the diocese has been turning over records on a “rolling basis” through the pretrial discovery phase, including secret personnel files of priests who were credibly accused of sexually abusing children, several attorneys told the judge they are still waiting for documents and have had to file motions to compel their release. Another attorney noted that records an appellate court had ordered the diocese to turn over to plaintiffs’ attorneys have still not been released.
Costello said the diocese also wants to provide compensation to accusers who were not able to find attorneys to take their cases.
Lafave, the Albany attorney who has helped lead the mediation negotiations, responded that that would be a separate issue for the diocese to deal with and not part of the mediation plan being negotiated by the attorneys for those who filed cases under the Child Victims Act. “If we have to deal with it, we have to have the resources to deal with it, of course,” Costello said. “The diocese is concerned with all the victim survivors.”