This article was published in the Australian Alternative Dispute Resolution Bulletin 2016 Vol 3 No3.

by Kerry Hogan-Ross 

 

“Honesty, frankness and well-meaning people can get to a settlement,” says US mediator Federal Judge Michael R Hogan1 in the context of the 2012 Spokane, Washing- ton diocese US$48 million settlement with victims of child sexual abuse (survivors).

I would add “informed” to the qualities required to conduct a mediation involving child sexual abuse.

Hogan J, a non-Catholic, who favoured a leather jacket and casual clothes for mediation also said “the overall idea is of healing for the victims and the church”.2

The concept of healing, or reconciliation, is the single most important facet of mediating child sex abuse claims and it is this concept that distinguishes these types of mediations from other disputes.3

Mediation — the practicalities

Mediators do not operate in a vacuum and the best approach to a mediation varies for each survivor. There is no one size fits all. Before the mediation the mediator receives a bundle of documents and position papers that have often been exchanged between the parties. The bundle will include documents that reveal personal details of the survivor including their experiences, reli- gion, ethnicity, sexuality, mental and physical condition. From these documents a mediator can glean a lot about the survivor. The documents can be used to develop an understanding of what is likely to be most important to the survivors and how they would like to be treated. If the material does not provide an adequate picture of the survivor, the mediator might seek more information before embarking on the mediation.

Child sexual abuse mediations tend to follow a familiar pattern. In the first instance the mediator meets separately with the survivor and their team and also the institution’s representative and its team. The purpose of these meetings is to take a “temperature check” to see if the parties are prepared and ready to proceed. Some- times a mediator will need to work to get a party into a better frame of mind. Once the parties are ready, a group meeting is held for what can be described as the pastoral part of the mediation. Given the sensitivity of the subject matter, often some members of the parties’ teams remain in their breakout rooms while the group meeting takes place.

During the group meeting, the survivor is invited by the mediator to tell their story of abuse and the effect it has had on them. The representative of the institution, often a church leader, will respond. It is always prefer- able that the representative’s response demonstrates that they have listened to and understood what the survivor has said. The representative will then apologise on behalf of the institution. Sometimes, if the survivor has continued to be a member of the church, a private prayer or blessing might be held. Thereafter, financial negotia- tions commence. If the group session has been handled well, the negotiating phase should not undermine the work done in the group meeting.

Why mediation?

There are various reasons why mediation is the most common resolution method of child sexual abuse claims but, primarily, mediation tends to support the aims and interests of both parties. Like any mediation, it avoids the risk of a trial, is cheaper, it is confidential and is a less damaging process.

The institution avoids the risk of the court making an award that is high relative to the sums generally nego- tiated in mediations. For instance, the Victorian Supreme Court awarded damages of $1.27 million in Erlich v Leifer.4 Thus, mediation can be seen as a way the institution can save money and possibly avoid insol- vency.

From the survivor’s point of view, the litigation process can be brutal and lead to re-traumatisation, especially when the abuse itself is not admitted and the survivor is put to proof of the abuse. By way of example, the Ellis v Pell5 litigation in which the Catholic Church took a hard line was damaging to Mr Ellis’ health: “[his] health deteriorated markedly as a result of the court’s verdict and that prospects of self-harm [were] evident”.6 Although the church won at trial and on appeal, it lost in the trial of public opinion and eventually paid Mr Ellis damages of $570,365.7 This was substantially in excess of the amount he had sought at the outset. The Royal Commission made negative findings in regard to the church’s approach in that case.8

Mediation is sometimes sold as being empowering to the survivor but, with so few options available, for some the “choice” of mediation is no real choice at all — it’s mediation or nothing. Hence, the suggestion that media- tion empowers survivors has been described as a “mere chimera”.9 There is some truth in that, but mediation has the potential to empower a survivor — the fact of telling the story, having it accepted and believed by the insti- tution possibly for the first time, and receiving an acknowledgment and an apology can be empowering in itself. For some, this is the most important part of the mediation process — to be heard and believed can be transformative, or at least be a vital step towards healing, reconciliation and recovery.

Some survivors are uncomfortable when it comes to the money stage. They may feel their silence is being bought or they are being paid for sex. A mediator who has no financial or professional interest in the outcome can explain that while no amount of money can right the wrong done to them, it might ease some of the survivor’s present difficulties. In my view such an intervention does not undermine a mediator’s impartiality — the institution is at the mediation to resolve the dispute, a failure to settle for a fair and reasonable sum with appropriate documentation and releases is not a good result for either party.

Others want to make the institution pay and to come away with something concrete from the mediation. For those survivors, financial negotiations may be the most important part of the mediation.

Privacy and secrecy

Mediation may protect the reputation of the institu- tion but it also protects the privacy of the individual. The experience of child sexual abuse is often a survivor’s tightly held secret, never discussed with anyone. Others have told someone at the time of the abuse — family members or others within the institution — but were not believed. For some the prospect of giving evidence in open court, being cross-examined and being reported in the press is anathema. The Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) has given many survivors the opportunity to tell their story in a safe environment but just as many have chosen not to.

Trauma informed practice

The trauma of child sexual abuse and the potential for re-traumatisation is well recognised and acknowledged. Dr Cathy Kezelman, President, Adults Surviving Child Abuse states:10

People with unresolved trauma may experience lifetime patterns of fear and lack of trust; long-term difficulties with emotional regulation and managing stress as well as chronic feelings of helplessness, all of which affect their relation- ships with themselves, with others and with the world … Survivors may present with deep feelings of insecurity, low

self-esteem, poor frustration tolerance; sensitivity to criticism, and they may be either hyper-aroused (physical or psychological agitation) or hypo-aroused (shut down — emotionally numb) … They often exhibit risk-taking behaviours, and/or are self-harming, suicidal or abuse substances.

The mediation can be a deeply emotional experience for a survivor and there is a risk they will decompensate. Further, a survivor’s trust issues may extend to the mediation process and the mediator. Mediators therefore need to understand, and know how to respond when confronted with, the psychology and trauma of a survivor. Dr Kezelman recommends that practitioners adopt “trauma informed practice” as this can facilitate feelings of trust, safety and empowerment.

From the first meeting with the survivor a mediator will be working to create a safe and trustworthy environment. This includes:

    • understanding the potential for re-traumatisation;
    • knowing how to de-escalate hyper-arousal or engaging a survivor who is hypo-aroused; and
    • empowering the survivor so that they can call time out when necessary or change a dynamic that is not working for them. But just as every case of child sexual abuse is different, so is the survivor’s response. There is no single approach to such mediations — no one-size fits all — a mediator needs to be able to adapt to varying degrees of emotion including anger, shame, guilt and betrayal. In a mediation, the mediator bears witness to the survivor’s usually traumatic story. This can be harrowing and personally challenging to hear. Dr Kezelman notes that when a person hears a story of trauma, the normal response includes shock, anger, horror and grief. But, she says, “feelings of hope and optimism are critical for recovery and it is important that other people hold the hope when survivors can’t”.11  In essence, a mediator needs to balance compassion and empathy with optimism. Distrust of institutions and the legal process can make the mediation process daunting and intimidating. Selection of the venue can make a difference — for instance I mediated a series of forced adoption claims in Perth. The venue selected was a suburban cottage usually designated for family conciliations. The venue produced a peaceful and respectful atmosphere. Informality is often vital to win over trust and to put the survivor at ease. However, that is not always the case. Some survivors see the mediation as a substitute for their day in court, when they finally get to tell their story to a third party to explain what has happened to them, to look at the institution’s representatives and say “look what you have done to me”. Such a person may prefer the mediation to be more formal, to carry more gravitas — not a mediator in a leather jacket or a mediation in a suburban cottage. Conversely, if the survivor has trust and self-esteem issues, going to the 54th floor of a city tower with everyone in expensive suits is unlikely to make the survivor comfortable and trusting.

It is not just the survivor that needs careful consideration from the mediator. The magnitude of the sexual abuse of children by institutions has been described as “one of the great tragedies of modern times”.12 That tragedy is felt not just by the survivors but also by the people within the institutions themselves.

Representatives of institutions that attend mediations can be experiencing their own trauma — eg disbelief, shame or anger that their beloved institution to which they may have given over their lives could be responsible for abhorrent crimes, fear that the monetary claims will bring financial ruin, and resentment that they are required to bear witness to the survivor’s story and to make the apology. The mediator can play a role by reassuring the representative, reiterating the importance of a heartfelt apology and preparing them if necessary for a negative response from the survivor. The apology is a critical part of the process; if it is not done properly the mediation can falter.

Given the now widespread recognition that some institutions were aware of the child sexual abuse, it is unhelpful for a representative to say “we didn’t know … if I had known …”. The survivor may react angrily to this, even when there is no suggestion that the representative was aware or involved in any way with the abuse or any cover up.

Ethical considerations

The recent Academy Award winning film, Spotlight,13 brought to public attention some of the ethical dilemmas experienced by many practitioners. In particular, it depicted the conduct of journalists and lawyers who were aware of ongoing abuse and did little or nothing to bring it to light:14

The film raises significant questions about legal ethics and personal morality. How do we reconcile the sanctity of confidentiality and attorney-client privilege against the moral dilemma of knowledge about a client’s outrageous acts? It is one thing to maintain confidentiality in representing someone accused of an isolated crime that occurred in the past, but what if a lawyer has information that could prevent hideous child abuse from occurring in the future?

Thankfully, given worldwide publicity, awareness of child sexual abuse and, notably, the Royal Commission, there is now a much lower prospect of a mediated settlement occurring in relation to a perpetrator still in circulation, such as described in the film. However, all parties in a mediation should remain aware of the potential for doing harm to the survivor and to others.

Given the bright glare of recent publicity and the Royal Commission, payments are now less considered to be “hush money” — buying the survivor’s silence.

Likewise, power imbalance between the parties is now less of a problem. Survivors are now more likely to be represented by lawyers who specialise in this area of the law and ably protect their client’s interests. However, again, mediators should remain alert to any suggestion that a survivor is being railroaded into a settlement or being denied their rights.

Impartiality

One of the hallmarks of mediation is that the media- tor is unbiased and neutral. However, Mr Michael Salmon, Director of the Catholic Church’s NSW/ACT Professional Standards Office, says that mediators should not shy away from demonstrating to the survivor that the mediator cares for the survivor, understands the burden they have carried and that it is the survivor’s interests that are at the heart of the mediation process. Mr Salmon likened mediations and facilitations of child sexual abuse claims to family law mediations where the inter- ests of the child are paramount. There is nothing neutral about a mediator’s standing in that regard, and similarly it is difficult and undesirable for a mediator in a child sexual abuse case to remain too professionally distant in a bid to maintain neutrality. Conversely, an overly sympathetic or upset mediator is unlikely to be effective and could create additional discomfort for the survivor.

Cultural awareness

Not only is it important for mediators to be aware of the trauma issues of survivors, cultural awareness is also important. For example, if a survivor is an Aboriginal or a Torres Strait Islander person, a mediator should be familiar with correct terminology and how to show respect and sensitivity — there are various resources in that regard.15 An offer to acknowledge the land or original custodians during the opening session can engender trust and respect.

Likewise, different religions and cultures have particular customs, eg some observant Jews and Muslims do not shake hands with the opposite sex. Other con- cerns can involve seating arrangements, whether a door should be left open and dietary requirements. It is preferable for such issues to be known before the mediation — being forewarned can prevent a damaging misstep.

Redress scheme

In its Redress and civil litigation report16 (Redress Report) the Royal Commission scheme. This would present another alternative to legal proceedings and mediation. To date, the Australian Government has not taken up the recommendation and appears unlikely to. The Redress Report recommended that in the absence of a national scheme, state and territory governments should establish redress schemes.

None of the states and territories are rushing to establish redress schemes as recommended by the Royal Commission, but should they do so, the schemes are likely to have the following features:

• Redress will include re-engagement between a survivor and an institution (if desired by the survivor), counselling and psychological care and monetary payments.

• Monetary payments will be capped at around $150,000–$200,000 for the most severe case.

• The standard of proof will be reasonable likelihood (which is lower than the balance of probabilities).

• It will adopt:17 
… administrative decision-making processes appropriate to a large-scale redress scheme. It should make decisions based on the application of the detailed assessment procedures and guidelines for implementing the matrix for monetary payments.

• It will offer review and appeal processes.

• The scheme should “report any allegations to the police if it has reason to believe that there may be a current risk to children”.18

Conclusion

Mediation is not a perfect process for dealing with child sexual abuse, but it’s the best we’ve got. Repeatedly hearing traumatic stories of child sexual abuse is challenging for most people, including mediators. However, it is important to remember that, for each survivor, the day of the mediation may be a greatly anticipated moment, whether looked forward to or dreaded. In my view a mediator will be most effective if they bring an optimistic and informed attitude as recommended by Dr Kezelman and are honest, frank and well-meaning, as suggested by Hogan J. The process may help the survivor, and yes, the institution, to heal and reconcile with the past.

Limitation periods in Australia — child sexual abuse cases 
Commonwealth, state and territory statutes of limitation have long been a deterrent to claims against institutions for child sexual abuse. By the time sexual abuse is reported, the limitation period has usually long since expired. It is a powerful defence. The Redress Report recommends:19

State and territory governments should introduce legislation to remove any limitation period that applies to a claim for damages brought by a person where that claim is founded on the personal injury of the person resulting from sexual abuse of the person in an institutional context when the person is or was a child.

So far, only Western Australia,20 Victoria21 and New South Wales have removed limitation periods so as to “lift one barrier to justice for survivors of child abuse”.22

Meanwhile, in May 2016, Commonwealth Attorney- General George Brandis issued a directive to Common- wealth agencies to not use the statute of limitations as a defence. This is in response to claims of sexual abuse of children in certain divisions of the Australian Defence Force. These claims are expected to be aired in public hearings of the Royal Commission in June 2016 and are also the subject of three new cases launched in respect of alleged mistreat- ment at HMAS Nirimba from the late 1960s to the early 1980s.23

Currently legislation in the ACT, Northern Territory, Queensland, South Australia and Tasmania makes no provision for lifting or extending the limitation period for child sexual abuse.24 However, on 10 May, Queensland Communities and Child Safety Minister Shannon Fentiman announced that the government would consider statutory reforms that would eliminate the time limit for child sex survivors.25

Kerry Hogan-Ross

Solicitor and Mediator
KHR Legal & Kerry Hogan-Ross Mediations
kerry@hogan-ross.com www.hogan-ross.com

Footnotes

1. Tom Gallagher “Mediation: a new model for settling sex abuse cases” National Catholic Reporter (online) 20 July 2012 ncronline.org.

2. Above, n 1.

3. Mediations dealing with forced adoptions also share this distinguishing feature.

4. Erlich v Leifer [2015] VSC 499; BC201508968.

5. Ellis v Pell [2006] NSWSC 109; BC200601217; Trustees of the

Roman Catholic Church v Ellis (2007) 70 NSWLR 565; (2007) 63 ACSR 346; [2007] NSWCA 117; BC200704313; Mr Ellis’ application to the High Court to seek leave to appeal was refused in November 2007.

6. Royal Commission into Institutional Responses to Child Sexual Abuse Report of Case Study No 8: Mr John Ellis’s experience of the Towards Healing process and civil litigation (January 2015) p 97.

7. Above n 6, p 107.

8. Above n 6, p 104: “Finding 34: ‘The Archdiocese failed to conduct the litigation with Mr Ellis in a manner that adequately took account of his pastoral and other needs as a victim of sexual abuse …”.

9. T Altobelli “Mediation in sexual abuse cases: opportunism or anathema” (2002) 5(3) ADR Bulletin 1.

10. Dr Cathy Kezelman “Trauma Informed Practice Explained: Meeting the Needs of this Special Group of Clients” (paper presented at Civil Claims for Institutional Abuse Seminar, Sydney, 26 June 2014).

11. Above n 10.

12. Richard Calkins, Mediation in church sexual abuse cases,

13. Spotlight (directed by Tom McCarthy, 2015) Academy Award winner for Best Picture.

14. Louis D Brandeis, An Interdisciplinary Retrospective: Spot- 
light and the role of lawyers, 27 February 2016, www.legal ethicsforum.com.

15. NSW Department of Community Services Working with Aborigi- 
nal People and Communities: A practice resource (Febru- ary 2009).

16. Royal Commission Redress and civil litigation report 
(September 2015).

17. Above n 16, Recommendation 58, p 41.

18. Above n 16, Recommenation 73, p 46.

19. Above n 16, Recommendation 85, p 459.

20. Limitation Amendment (Child Sexual Abuse Actions) Act 2015

(WA).

21. Limitation of Actions Amendment (Child Abuse) Act 2015

(Vic) became operative on 1 July 2015.
2015, www.inadr.org.

22. NSW, Parliamentary Debates, Legislative Assembly, 16 February 2016, Second reading speech, Limitation Amendment (Child Abuse) Bill 2016 (Gabrielle Upton, Attorney General).

23. Ean Higgins “George Brandis puts navy in abuse firing line” The Australian (online) 18 May 2016 www.theaustralian.com.au.

24. Royal Commission Issues Paper 5 — Civil litigation (June 2015).

25. Amy Price and Kate McKenna “Push to end legal agony of abuse” The Courier Mail (online) 10 May 2016 www.couriermail.com.