Virginia Giuffre and Prince Andrew - Would mediation help?

The stakes are high

The litigation rumbles on between Virginia Giuffre and Prince Andrew. He and his lawyers were obviously hoping they could get rid of the case by having it struck out now rather than having to go to trial (1) on jurisdictional grounds (Virginia Giuffre is based in Australia but has brought the case in the US) and/or (2) on the basis that the settlement agreement between Virginia Giuffre and Jeffrey Epstein in 2009 released Prince Andrew from liability. However without making any decisions on those issues, the judge has decided that the case must proceed, and so it will rumble on towards a trial, in the full glare of the media.

For the two protagonists the stakes are very high. If Virginia Giuffre wins it will be a further vindication of the stance she has taken against Jeffrey Epstein and his acolytes, and she should also receive substantial compensation. If she loses her reputation will be in tatters, since she will be cast not as a victim but as an accomplice of Epstein, an active enabler of sex-trafficking and abuse. And she will have to bear her own legal costs, which will be substantial.

For Prince Andrew the mere existence of the claims against him has been severely damaging already to his reputation. He has just lost his remaining ceremonial ranks and titles, and winning the case is unlikely to reverse that damage. If he loses he may have his status as a royal taken away, which is clearly critical to him, and he will likely have to pay substantial damages and his own legal costs. He is clearly not a member of the super rich, and therefore a loss for him could be as catastrophic as a loss for her may be for Virginia Giuffre.

They are both faced with a zero sum dilemma

The conclusions which the court can come to and the remedies they can give are limited. In very simplistic terms the primary likely outcomes are either (1) the court finds that Virginia Giuffre was sexually abused and trafficked for that purpose and awards her damages (she wins, he loses), or (2) it finds she wasn’t or, if she was, the settlement agreement is effective to absolve Prince Andrew from liability (he wins, she loses). That last scenario really does emphasise the possible downsides of even winning for Prince Andrew; he would have been found to have sexually abused a girl, but escapes liability on what might be regarded as a technicality. Finally it is difficult to see any obvious middle ground, in which some sort of carve up of a judgment could be made from which both could claim a victory. It is a zero sum game.

Virginia Giuffre and Prince Andrew will be both asking their lawyers what their chances of winning the case are, and hopefully also their chances of losing. The dilemma for them is that whilst it is pretty clear that the court will almost certainly give them a win/lose decision, neither lawyer is going to guarantee a win; as a result both will have been told their chances of winning are less than 100%. The likelihood is they will each have been given a much lower figure. As soon as the winning percentage falls below 100%, the assessment of the chances of losing increases; a 65% chance of winning (a high number in litigation) means there is a 35% chance of losing. In litigation you have be able to afford (financially, reputationally, whatever) to lose. Ask yourself whether you would accept a bet where you had a 35% chance of losing everything you have.

Mediation could provide the way out both parties may be looking for

Mediation offers both parties a way of finding out whether the case can be resolved on terms which (1) avoids the win/lose dilemma, (2) gives both parties something to take away and (3) removes the prospect of armageddon which both face. In particular:

  • Confidentiality. The mediation process and all things disclosed within it are confidential, and cannot be used in court proceedings and hearings. This gives the parties a safe framework within which they can discuss the dispute and explore options for settlement, without having to worry about any concessions or proposals being used against them in the media or in court. As is clear from this case, court proceedings are played out in public, and increasingly dispute lawyers use the media to position their client in the eyes of the public, with a view to applying maximum leverage to their opponent.
  • Mediator. The parties can rely on the mediator to help them develop possibilities and options for settlement. The mediators job is to manage the mediation impartially, to improve the chances of the parties reaching an agreement, by testing and challenging their positions, building at least some degree of collaboration and sense of shared interest between parties who are probably at daggers drawn, and bridging the gap between them. The parties can also disclose their thoughts to the mediator confidentially, things that they would not disclose to the other side. This enables the mediator to uncover common ground which, left to themselves, the parties would not see. A judge cannot do this.
  • Freedom and flexibility. In mediation the parties are not bound to agree a settlement based upon the limited remedies which are available to the court. They can agree whatever they like. In addition whilst the decision of a court is imposed and binding on the parties, if either party to the mediation does not like a proposed settlement, they do not have to agree to it; they are in control (not a judge) and they can walk away at any time. COMMediate Commercially focused dispute resolution

What might a settlement look like?

There are many possible permutations, but the key settlement terms may look like this:

  • Private and confidential. Given a settlement would involve compromise by both sides, and given in any event the very sensitive nature of the subject matter, it is highly likely that the terms of the settlement agreement would be strictly private and confidential. This will be frustrating for the media and some members of public, but it is a device which is commonly used in these circumstances. It gives the parties the option of making concessions which they may not feel able to make in public.
  • No admission of liability. Virginia Giuffre said on Wednesday this week that she is looking for justice. She has also said she will not settle for compensation alone. That may mean she will settle for nothing less than establishing liability on the part of Prince Andrew, secured either through a court trial or through an admission made by him in a settlement agreement. However she did enter into a settlement agreement with Jeffrey Epstein in which he expressly did not admit liability, so she may well accept similar terms. There is always a direct link between the amount of any settlement payment and admissions of liability; a non-admission costs more. However not admitting liability will no doubt be a key requirement of Prince Andrew for any settlement, if he is to have any chance of maintaining any royal position in the future.
  • Apology. An apology from the Prince may go some way to compensating for a non-admission of liability. In many cases which settle through mediation, a simple apology carries a lot of weight in helping people to come to terms with a compromise. The precise form and manner of delivery of the apology would have to be carefully agreed in advance. On the other hand if he remains adamant that he did nothing wrong, then Prince Andrew may not be able to bring himself to give one, which could affect the amount of compensation he has to pay.
  • Compensation. The general view appears to be that the chances of a case like this settling without Prince Andrew paying compensation are slim to non-existent. The amount which would have to be paid is difficult to assess. Jeffrey Epstein paid $500,000 in 2009. Some commentators regard that as a small amount for the claims Virginia Giuffre was making then. The likelihood is that the amount would have to be substantially more than that sum, discounted perhaps to take into account the litigation risk which Virginia Giuffre is facing.
  • Public statements. Although the terms of any settlement will be confidential and will not be disclosed, Virginia Giuffre and Prince Andrew will have to say something publically about the settlement, since the dispute is already in the public domain and generating massive interest. Again the statements of each would have to be carefully crafted and agreed, and delivered COMMediate Commercially focused dispute resolution verbatim. There is scope in each statement for each party to claim a little bit of a victory. Virginia Giuffre might say justice has been done, without explaining how. Prince Andrew might say the case has settled without an admission of liability, but not disclosing that he has paid compensation.

The job of the mediator would be to help both sides and their advisers navigate their way through these and many other issues to achieve a settlement. The court will not be able to do this, or hand down a decision which looks anything like the pragmatic compromise outlined above. Of course the parties may be capable of reaching agreement without the help of a mediator, but it is likely that a mediator would help them reach a better settlement, one which is more likely to stick, and which is concluded more quickly and more cheaply.