As a mediator for more three decades, I have helped resolve some of the nation’s most protracted, complex and emotional disputes. I certainly place my recent mediation of the Penn State University/Jerry Sandusky sexual abuse claims in that category.
Those who either don’t understand how mediation works — or simply chose not to learn — have claimed that Penn State’s board did not work hard enough to protect the university’s interests during almost one year of intense mediation. The facts speak otherwise.
As a mediator, my role was not to represent Penn State, but, rather, to approach each case as a neutral, working to bring both sides together to reach a consensual agreement. While I am not permitted, because of mediation confidentiality, to discuss any of the approximately 30 specific cases, I can say this: The process was thorough, fair, respectful and characterized by full arms-length debate in each case.
None of the cases were settled purely for financial reasons. Nor were the settlements reached because the university feared that its reputation would be tarnished or adversely impacted. Every case had a “settlement value,” which took into account such additional factors as: the date of the claimed abuse; the nature of the proof of sexual abuse advanced by the claimant; the talent and skill of the lawyer representing the claimant; the venue where the case would ultimately be tried before a jury and the date of the scheduled trial; the potential costs associated with a protracted trial; and the very real risk of confronting adverse verdicts much higher than those demanded by the claimants during the mediation.
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The university insisted on corroboration of each claim. And some claimants simply could not provide such sufficient corroborating information. In other cases, claimant demands were simply too high.
Had members of the Penn State board of trustees simply wanted quickly to settle the cases, the individual claims would not have taken months to resolve. Instead, the mediation process was extended time and again over many months as each claimant made new demands resulting in new offers being advanced by the university in an effort to reach an agreement.
Ira Lubert, chairman of Penn State’s legal subcommittee, pursued mediation with a talented committee of top level executives, and a fully engaged board that authorized each recommended settlement. Lubert and his colleagues were hard-nosed negotiators with a great deal of business experience in conducting high-risk negotiations. The legal subcommittee took an active role in reviewing each claim. The subcommittee understood high stakes negotiation and brought a critical level of sophistication to the process. As mediator, I met on numerous occasions — both in person and by telephone conference call — with both the subcommittee and the full board. I provided them thorough updates concerning the overall mediation effort. Individual Board members asked important incisive questions, which were helpful in moving the process forward.
In ultimately resolving almost 30 individual claims of sexual abuse, the Penn State board frequently pushed back aggressively, resulting in some cases in significant delay. Agreements were not reached in all cases. And of those that were successfully mediated, there was a wide range of payments made to individual claimants.
Critics may reject the settlements, but they should not question the resolve of the Penn State board of trustees in its effort to provide the best possible outcome for the university at a very challenging time. Nearly all of the sexual abuse litigation against Penn State has now been settled, a remarkable achievement given the high profile nature of the cases. Preventing years of expensive, protracted and uncertain litigation will save Penn State millions of dollars, while sparing the victims who brought their cases forward the agony of an extended legal battle.
I believe the Penn State mediation is a model of how such a dispute resolution process should work.
Kenneth Feinberg has been Penn State’s mediator during the settlement process with alleged victims of Jerry Sandusky. He served as administrator and mediator of the Federal September 11th Victim Compensation Fund and the Boston Marathon Bombings Compensation Program. He wrote this for PennLive.com.