It's the first time I've become emotional reading a research paper, but an article by USC academic Gillian Hadfield got to me. Sad movies sometimes do that too, but I'm usually safe around law school publications.
Maybe it was because of a mediation, only just completed, involving a young and troubled life taken. It's still raw and I just wasn't qualified to be the straw those barely functioning parents grabbed hold of.
So, don't say you haven't been warned - choose a rainy Sunday evening to settle in and read Gillian's 65 page Framing the Choice between Cash and Courthouse: Experiences with the 9/11 Victim Compensation Fund.
Sure, it contains the usual research speak, you know - 'groups, sub-groups, narrative evidence' and stuff but there's a thousand human stories sitting behind all of that and, if you have been mediating for a while, you'll have come across them before - good people faced with making a money claim for an uncompensatable death and an uncompensatable emptiness.
But before you curl up in your favourite chair, watch this video (click anywhere inside the box);
In it the Special Master of the September 11th Victim Compensation Fund, Ken Feinberg, explains how he saw his task - that's important because I want you to reflect on how judges and lawyers see these things - a question of families 'comparing values, payout times and probabilities; choosing between the sure thing of a Federal fund and the lottery ticket of a day in court'.
Or is it something else?
Yeah, sure, the video and paper are full of stats - an incredible 98% of eligible claimants applying, only a handful suing - and that the Fund calculates the money by assessing;
economic loss (what would the victim have earned?)
+ non economic loss (how much suffering?)
- any insurance etc
= average death payout of $1.8m
And when an abstract of Hadfield's paper was circulated last week on an ADR list serve, one mediator's response was;
"... in a quick read, it seems Prof Hadfield is making a case for the filing of lawsuits as being a democratic and patriotic act, while mediation being somehow almost dishonorable, or robbing "the people" of an opportunity to engage in a civil and civic discourse. Not exactly what they taught me at Pepperdine...."
But I don't think that's really fair, the thesis is more complex than that... the research question was simple "How did people who had suffered an injury or lost a family member think about the choice between collecting money from the VCF and pursuing civil litigation?" and what Prof Hadfield found is that;
"The decision to go with the Fund was clearly for many a negative one, driven by a capitulation to reality and brute facts. For some, particularly women with children, the poor and the injured,reality was dominated by immediate financial need... it involved not an easy trade off between a guaranteed dollar payment and a gamble on a ‘pot of gold,’ but a deeply troubling trade off between money and a host of non‐monetary values that respondents thought they might obtain from litigation. These values included information from otherwise inaccessible sources the decision makers who determined airline and World Trade Center fire safety procedures, for example), accountability in the sense of public judgment about whether those on whom victims depended for their safety did their jobs, and responsive policy change—making sure that lessons were learned and heeded in the future...".
See what you think of it all - then come back here and post a comment - I know that the paper will help me respond more intelligently to parties when they anguish over 'valuing' a life, a hurt, a disappointment, a vacuum, an injury...
1. Negotiation & The Art of War Strategies by Osama El-Kadi, who specialises in applying Sun Tzu Art of War strategies in advanced strategic negotiation training.
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