Efforts begin to measure ‘pot money’ for survivors of clergy abuse

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ALBANY — Attorneys for hundreds of victims who were allegedly 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 make advancing hundreds of lawsuits under the Child Victims Act, some of which are due to go to trial in the coming months.

At a Monday conference with state Supreme Court Justice L. Michael Mackey, attorneys for more than 400 plaintiffs denied a request by Diocese attorney Michael L. Costello to “stay” the dispute in order to set up a mediation program. Lawyers noted that this would halt the pretrial discovery process, delay scheduled trials and make it less likely that diocesan insurance companies would be motivated to aggressively resolve cases.

Cynthia S. Lafave, a lawyer from Guilderland, said lawyers for the alleged victims who filed complaints could not agree to support the mediation plan that was presented by the diocese last week. She noted that he called on victims to sign releases in order to join a mediation process in which they would no longer have control of the outcome.

“Everyone has gotten to the point where they are in pre-trial litigation or have a trial date, LaFave told the judge. “A reprieve would return all power to the Diocese at that time. … (The Diocese Mediation Plan) took power and voice away from the survivors.”

The lawyers agreed at Monday’s conference to move forward with another mediation plan, but without a court order preventing the lawsuits from moving forward on a separate track.

“We need to pursue litigation and if the case is successfully resolved in litigation, so be it,” said Mitchell Garabedian, a Massachusetts attorney who represents victims suing the Diocese of Albany and was involved in an $85 million sexual abuse settlement reached with the Diocese of Boston two decades ago.

Garabedian noted that many of the accused abusers, as well as victims and witnesses, are elderly, ill or dying.

“The evidence is disappearing,” he told the judge. “We’re talking about irreparable harm here. We can’t recoup that for the survivors. They have to heal through validation. … Let’s go to court and mediate and if the diocese has to file for bankruptcy at that time, fine. “

The mediation plan that began to take shape on Monday would be similar to others that have been used to settle cases with Catholic dioceses across the United States, including in California, to compensate victims of sexual abuse.

Costello said the Diocese of Albany would prefer the mediators to be retired judges from upstate New York who “know these cases. … We think that would give balance to all of this.”

Lawyers for the alleged victims rejected the idea and said they would prefer to use officials experienced in handling sexual abuse cases. They proposed Simone Lelchuck, a New York lawyer who has done extensive work with sexual misconduct funds, and George J. Silver, who retired last year as the Deputy Chief Administrative Courts Judge. of New York and had presided over cases involving child victims. Law.

Costello and the plaintiffs’ attorneys then agreed to negotiate the selection of two mediators, who would begin the process of establishing the amount of money available to compensate the victims. This fund, which would probably represent hundreds of millions of dollars, would be financed by the diocese of the 14 counties, its parishes and its insurers.


The plan envisioned by the attorneys is for a high percentage of the approximately 440 victims who have filed complaints against the Diocese of Albany to agree to participate in the mediation plan. In Boston, they had required that at least 79% of victims sign the mediation plan for it to be adopted. Some victims would still have the option of opting out and taking their case to court or engaging in their own mediation.

For those who agree to participate 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 minimum and maximum compensation.

“The biggest problem is the pot of money,” Jeffrey M. Herman, an attorney whose firm specializes in sexual abuse litigation, told Judge Jeffrey M. Herman. “We are now sitting down immediately and seeing if we can find a jar that makes sense for everyone. There is no reason to put this business on hold. … It would be an outrage and an affront to my clients who have been waiting for always this time to go to trial. They (the diocese) are here because we are about to go to trial, it is not a mystery.

Indeed, Albany Bishop Edward Scharfenberger recently released statements saying that if the diocese were forced to go to court in the sex abuse cases, it would likely file for bankruptcy.

Last month, the diocese settled the first Child Victims Act case that was to go to trial for $750,000. The settlement followed negotiations in which Costello, the diocese’s attorney, warned alleged victim Stephen J. Mittler that if his case remained on track for his July 25 trial date, the diocese would file his record before a jury was chosen, according to Matthew J. Kelly, Mittler’s attorney.

The next trial is scheduled for early September. Costello expressed doubts Monday that the mediation plan could be worked out before a jury is chosen in the case. But lawyers for the alleged victims countered that if the two sides started working immediately, including choosing two mediators and working out how much money would be available, they could do it.

With cases going to trial, Herman said, this will create additional pressure for diocesan insurance companies to come to the negotiating table.

“Going to trial is a motivation for the diocese and the pallbearers, so I think it makes sense to do it now but not have the reprieve,” Herman added.

Although Costello said the diocese quickly turned over records on an “ongoing basis” throughout the pre-trial discovery phase, including the secret personal files of priests credibly accused of sexually abusing children, several lawyers told the judge that they were still waiting. documents and had to file motions to demand their release. Another lawyer noted that records that an appeals court ordered the diocese to turn over to plaintiffs’ attorneys have still not been released.

Costello said the diocese also wants to compensate alleged victims who were unable to find lawyers to take their cases. LaFave, the Guilderland lawyer who helped lead the mediation negotiations, replied that it would be a separate matter for the diocese to deal with and would not be part of the mediation plan negotiated by the lawyers for those who filed complaints. 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 cares about all surviving victims.”

The diocese recently warned it would file for bankruptcy if the cases go to trial. The diocese said the mediation proposal they recently announced was the result of a roughly year-long effort to develop a plan to “avoid the expense and delay associated with piecemeal litigation…offering victims/survivors a better recovery in a shorter period of time.”

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