The Penn State Debacle Will Surely Find Its Way Into Mediation

In addition to the criminal actions associated with the Penn State sex abuse case, for which there will most likely in time be “plea deals” (negotiated results), it is certain that there will be many private civil actions for damages by the individuals and families that have been harmed. If those cases were to proceed through the courts, with certain appeals, the likely wait time would be 5 years or more. Mediation will surely offer a better option.


In addition to the necessary criminal actions, by also considering these matters in civil mediation, the aggrieved will have the opportunity to directly confront those involved and to negotiate acceptable public contrition. Damage awards, surely in the millions, will be negotiated and these resources will swiftly be made available to those harmed years before any court could so definitively act. In fact, through mediation, more “justice” is delivered these days than could ever be effectively provided by the courts. The Penn State situation, comparable to many church sex abuse cases, is appropriate for and sure to receive the aggressive application of confidential and effective mediation assistance.


The application of mediation to provide those harmed with money damages, be that at Penn State, relative to the church, or more generally, is not to in any way suggest that the public lessen its demands for “justice” and punishment for the guilty. Our courts do in fact offer us all a valuable resource in being able to so formally declare certain behavior as out of bounds and subject to harsh punishment. Nonetheless, even in this criminal arena, the reality is that over 97% of criminal cases are negotiated to a plea agreement, and, as mediation is nothing other than “assisted negotiation,” it is also true that mediation is increasingly a part of these criminal plea negotiations.


Further, in time, “restorative mediation” may also be utilized for those who have been harmed. Restorative mediation discussions might take place even with those who have not been criminally charged. The confidentiality of these discussions makes them safe. And so, even if Joe Paterno is not criminally charged, he might wisely choose to participate in private restorative mediation discussions with those who have been harmed as part of their healing process. And so, even in these situations where “right” and “wrong” may well be relatively clear, we will see that mediation will beneficially be utilized, not to lessen the outrage and wrongfulness, but to more effectively accomplish the relief, financial, emotional and relational, that those who have been harmed need and deserve.


In the Penn State case and too many others like it, the victims suffering is extended by the continued public spectacle. Better in time is to put the reins of control back into the hands of those who have been victimized and their families (with quality legal counsel). As mediation offers the critical qualities of confidentiality and complete participant control over the results, mediation can beneficially be utilized to most swiftly and surely compensate victims and manage the damage that has been done. We are all better off to be able to offer quality mediation opportunities to those that have been harmed. Mediation is now at the heart of our society most capably responding to the Penn State and so many other difficult situations.

                        author

James Melamed, J.D.

Jim Melamed co-founded Mediate.com in 1996 along with John Helie and served as CEO of Mediate.com through June 2020 (25 years).  Jim is currently Board Chair and General Counsel for Resourceful Internet Solutions, Inc. (RIS), home to Mediate.com, Arbitrate.com, ODR.com and other leading dispute resolution sites. During Jim's 25-year tenure,… MORE >

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