In our experience, victims/survivors of acts that are negligent, reckless, or criminal, or that violate civil rights, such as discrimination, harassment, violence and retaliation often have four primary needs or aims, post-injury:
- For an institution to hear and understand their story, feelings and concerns;
- To know the who, what, where, when, why and how their situation occurred; who knew what, who did or did not do certain things, how was a matter addressed, who was disciplined and in what way, and how reform and change were implemented, subsequently — this is the accountability piece;
- To receive some form of adequate remediation for what they experienced;
- To make sure the same thing does not happen to someone else.
When a private, expeditious and fair approach can be implemented (and that is no small task), it can accomplish all four of these aims and also result in a more positive outcome for an institution, which is often looking to minimize negative PR, limit costs of litigation, settle for as little money as possible, adjust policies and procedures to prevent additional problems and return expeditiously to its regular business. We believe that the approach proposed by Penn State can also fulfill many of these aims.
Litigation can’t produce this result. There will be a winner and a loser. Litigation costs time and money. It ignites a media circus and serves as a distraction from the institutional mission.
Institutions, insurance companies and victims/survivors pay hefty sums to attorneys and experts only to face the lottery of the jury system, whose vagaries reward sympathy as often as they honor the letter of the law. Such outcomes often leave institutions, insurance companies and claimants feeling disenchanted and frustrated, rather than opening a path to healing and catharsis. Winning a case that an institution should have lost can reinforce arrogant refusals to internalize the lessons of the case. Losing a case it should have won embitters the institution, provoking it to fight the cases it shouldn’t. Where wrong has been done, amends must be made. Operations, procedures and mechanisms of accountability need to be changed at the institution. Victims need to be truly heard.
When faced with legitimate and serious claims, we hope that more institutions will consider using early settlement as a private, expeditious and fair approach — one that promotes healing, prevention of recurrence and institutional growth and change.
The authors — Brett A. Sokolow, J.D., Saundra K. Schuster, J.D., W. Scott Lewis, J.D., Daniel C. Swinton, J.D., Ed.D. — comprise the majority of the Executive Team of the National Center for Higher Education Risk Management (NCHERM). All four authors are attorneys and consult annually with 450 colleges and universities on matters of risk management, law and prevention with over 70 years in the field.
Related Articles:
- Managing Crises Means Managing Victims
- Hiring an Expert Witness? 10 Questions You Should Ask
- Auditor General: Make Penn State More Accountable
- Ex-Penn State President’s Lawyer Slams Freeh Report
- Child Sexual Abuse: It’s More Prevalent Than You Think
- Introducing Society’s Newest Scapegoats: Schools & Universities
Note: The views expressed by guest bloggers and contributors are those of the authors and do not necessarily represent the views of, and should not be attributed to, Campus Safety magazine.
