Times Union [Albany NY]
November 27, 2022
By Brendan J. Lyons
Mediator Paul A. Finn: “I’ve been doing this a long time and … this is a complete and total waste of time”
The ongoing mediation between the Roman Catholic Diocese of Albany and attorneys for hundreds of plaintiffs who filed sexual abuse claims under the Child Victims Act is teetering on collapse. One of two mediators overseeing the negotiations, which have languished for months, described them as a “complete and total waste of time.”
That analysis by Paul A. Finn, a Massachusetts attorney who oversaw the settlement of 552 cases of sexual abuse against the Archdiocese of Boston, came during a court conference last week when leaders of a committee representing dozens of plaintiffs’ attorneys informed the diocese’s attorney they should file for bankruptcy if they can’t provide a meaningful offer by Tuesday.
Cynthia S. LaFave, an attorney on the plaintiffs liaison committee, said they have been waiting since July for the diocese to offer what they expect to be a figure in the hundreds of millions of dollars for a fund that would be used to settle and pay damages to the hundreds of alleged victims.
“We do not see the previous offer as a realistic offer,” LaFave said of a deal put forth by the diocese in July. She added that if the diocese believes the undisclosed offer made four months ago is fair, “then they might as well just file for bankruptcy now — because there is not a single plaintiff’s attorney that will agree with that analysis.”
LaFave said the consensus of the attorneys for the hundreds of plaintiffs is that pre-trial discovery should continue to move forward along with any trials scheduled to begin next year.
Michael L. Costello, an attorney for the Albany diocese, recently asked the state Supreme Court justice overseeing the lawsuits to issue a 120-day stay on all related cases on the trial calendar so that his team would be able to cobble together an offer that would include funding from insurance carriers as well as more than 120 parishes and schools that are also being asked to contribute.
At last week’s hearing, Costello urged both sides to continue on the mediation path, attributing the delay in part to the fact that they are working with boards of trustees and other officials from the dozens of parishes and schools that are being brought up to speed on the litigation and trying to ascertain what funds they can donate to a global settlement. In some instances, individual parishes and schools have been targeted in the cases if any alleged abuse took place there.
Joan N. Feeney, a retired bankruptcy judge who is advising the Albany diocese as a consultant, cautioned that pushing the diocese into bankruptcy could lead to a years-long delay in any settlements and leave fewer assets available because the average cost of that process for a diocese could exceed $600,000 a month.
“Everyone is working diligently here,” Feeney said, urging state Supreme Court Justice L. Michael Mackey to help keep the mediation on track.
Finn is co-mediator in the case with attorney Simone Lelchuk, who specializes in mediation and allocation of settlement funds. But Finn was far less optimistic about the process moving forward successfully.
“This is a complete and total waste of time. We’ve got the plaintiffs and the defendants talking past each other,” Finn told the judge. “A mediation, as my friends know, involves two partners to tango. … We’ve tried everything we possibly can to get people onto the dance floor, but they don’t want to dance. … I’m not billing any more on this case because I don’t want to waste the resources. I’m done with this. … I’ve been doing this a long time, and if anybody respects what I have to say I would ask you to respect what I am saying right now: This is a complete and total waste of time.”
Mackey also expressed doubt about the success of the mediation, based on his sense of the pace of the process and the position of the plaintiffs’ attorneys.
“It’s really headed nowhere. Hopefully I’m wrong,” Mackey told the attorneys last week. The judge also noted that if more plaintiffs are made aware that the diocese is willing to negotiate settlements in cases — no matter what stage they are at in litigation — they might decide to reach individual deals.
“Maybe we’re at an end to this particular process but (can) segue into the other and take maybe a little bit more aggressive approach into encouraging individual plaintiffs who would like to resolve their cases to make that known and we’ll schedule settlement conferences,” the judge said.
Lelchuk, however, encouraged the diocese to continue moving ahead with its efforts to finalize an offer along with its insurance carriers and affiliated schools and parishes — but to try to do it sooner than the mid-January date the defendants have said would be needed to complete that process.
“So I think everybody should sort of do the work, get the information to each other and stop worrying about specific dates or specific deadlines and just keeping doing the work,” Lelchuk said. “I think that what the (plaintiffs liaison committee) is really trying to convey is they need the final number and they need it sooner rather than later. … Do the work and get them their number, and sort of let the chips fall where they may.”
Some of the plaintiffs’ attorney have accused the diocese of dragging out pre-trial discovery as well as the mediation in an attempt to run out the clock as plaintiffs, their alleged abusers and any witnesses are getting older, ill and in some cases dying.
“We cannot prove our cases if we continue on this route of just negotiations,” Mitchell Garabedian, a Massachusetts attorney who represents victims suing the Albany diocese, told the judge. “Let us litigate. … Survivors are getting old; some of them are passing away and they never got their day in court.”
“It’s well known that the (New York) dioceses have practiced the war of attrition in these cases in New York state, and this is the first step in the war of attrition,” said Garabedian, who was involved with an $85 million sexual abuse settlement reached with the Boston diocese two decades ago. “The diocese and the insurers are going to continue this negotiation for ad infinitum if they can, until they have to file bankruptcy, because we’ve reached a dead stalemate. Then the process of bankruptcy will take place with all its time elements. So why don’t they just file bankruptcy now, instead of this nonsense?”
The court conference ended last week with Mackey scheduling another conference for mid-January. But for now, at least, the hundreds of pending cases against the diocese will continue moving forward in court. The judge and Costello said that settlements had been reached in about 30 of the 440 cases filed against the diocese under the Child Victims Act.
In July, the Albany diocese settled the first Child Victims Act case that had been scheduled for trial for $750,000. Other cases scheduled for trial this year also have been settled, but the diocese had warned that if went forward with trials it would likely need to file for bankruptcy — a decision that has been made by a handful of other New York Catholic dioceses.
The mediation plan that began taking shape earlier this summer is similar to others that were used to settle cases with Catholic dioceses across the United States, including in California, and to compensate victims of sexual abuse.
The delay has centered on establishing how much money will be available to compensate victims from the 14-county diocese and its parishes, schools and insurance carriers.