HMA: How would you characterize your experience on the September 11 Victim Compensation Fund?
It was a unique experience, I think nothing I’ve ever done prepared me for the emotion and difficulties in compensating the families and the victims of 9/11.
HMA: Is this the first time the government has compensated victims of a terrorist attack directly?
Not really. It was the first time the government ever compensated the families and victims of terrorism to such a generous degree so soon after the attacks. This program was established by Congress literally weeks after 9/11 so emotion was extremely raw. Families were in grief and to set up program so soon after the triggering event was unique.
HMA: It was done in part to keep the airline industry afloat because the victims waived their rights to further suits, correct?
That’s right. It was part and parcel with legislation to provide loan guarantees and financial assistance to the airlines but I dare say Congress could have done that without setting up such a generous compensation system. It was partly in response to the airline bailout legislation [but] that doesn’t account for the total rationale surrounding the program.
HMA: Do you think a precedent was set with this program?
I think this was a unique program in response to an unprecedented historical event. It was the reaction of the American people to demonstrate cohesiveness and camaraderie with the families in grief. I think it unlikely that Congress would repeat this program, at least in its current form.
HMA: What grounds were considered to compensate the victims?
The statute laid out the grounds. It said that I had to consider economic loss, non-economic loss and that I had to deduct other sources of income like life insurance. In exceptional cases, it was left to me as to how I exercised my discretion to promote the interest of the legislation. I think the law, the statute itself creating the program, offered me some guidance in how it ought to work.
HMA: Did you find any particular issues or did you run across any problems with that kind of mandate?
All sorts of problems with that sort of mandate. How does one person compute the amount of loss? How do you avoid speculating what a victim would have earned over a lifetime? That’s a very difficult thing to do. Non-economic loss, pain and suffering and emotional distress. How much should it be? Will you vary it or will it be the same amount for everyone? Collateral sources of income --the law says you should offset life insurance and other sources of income. But what about charity? There was $2.5 billion of charity given by the American people. So there were a lot of issues posed by the statute. It gave me some guidance but it still required me to exercise tremendous amount of discretion in helping to get the job done. It was very difficult.
HMA: On a personal level, how do you feel now that it’s over in terms of the job you did?
I think the program was an unqualified success. We had 97% of eligible families come into the program. The gap between the average award of $2 million and the median of $1.7 million illustrates how I tried to exercise my discretion to lower the top award and bring up the bottom awards to get as close to similarity as I could do under the statute. But I think it worked well. I think it was a unique opportunity for the American people to demonstrate their solidarity with the families and victims. I think it turned out to be a success.
HMA: How did your experience as Special Master on the September 11 Victim Compensation Fund affect you personally?
Well, you become much more fatalistic. When you get up in the morning and you’re shaving and look in the mirror, you don’t plan more than a few weeks ahead. Life has a way of throwing curveballs at people … just the arbitrariness, the randomness of life and death in light of 9/11. These people went to work that day without the slightest inkling that anything like this would happen. You become a little bit more philosophical about these things.
HMA: Do you have any other learnings from this experience on a personal or professional level?
One thing I learned from a professional level is how important it is in mediating or arbitrating cases to factor in the element of emotion. Usually when I mediate or arbitrate, emotion isn’t an issue. These are big companies, Fortune 500 companies, big insurance companies. Years have gone by since the lawsuit was filed and now we’re trying to get it resolved. This was a unique situation where emotion lay at the heart of the problem. The program was established so soon after 9/11 that emotion had no chance to cool. So we had to deal with sometimes very irrational but well-intentioned arguments. And we managed to do that. I think it important that a mediator or arbitrator never lose sight of the fact that you have to deal not only with the merits of the dispute but the emotions generated by the litigants. I think that’s an important lesson from my experience administrating this fund.
HMA: How do you approach a mediation?
First I get separate confidential submissions from the each side so I can
understand the merits of the dispute, the law, the facts, the equities and
possible settlement terms. Then I meet with the parties together in a room
and make sure they have a chance to explain to one another
face-to-face, their own positions of the issues...very important, face-to-face discussions. Then I put them in
separate rooms, shuttle back and forth and try to get the case
resolved.
HMA: Do you feel having expertise in a specific type of industrial situation, such as asbestos, is a help or a hindrance to a mediator?
I think it’s a hindrance. I think expertise is vastly overrated in the choice of a mediator. A mediator can be educated by the parties about the merits of the dispute. You don’t want a mediator coming in with the type of experience where he or she already has sort of concrete views of the matter in dispute. It’s much more effective if the mediator is educated by the parties on a blank slate about the dispute In any event, whether you think expertise is important in the subject matter, it is vastly trumped by the need to have a mediator that knows how to mediate. I think mediation skills are much more important in a mediation than the substantive knowledge of the mediator about the dispute and issue.
HMA: How many mediations do you do each year?
High end mediations. .. probably 50 each year.
HMA: What kinds of cases attract you?
Everything. Mass torts is what I’ve done the most but commercial disputes, RICO, contractual disputes, employment discrimination, insurance coverage, environmental disputes, just about anything you can imagine.
HMA: Are you attracted to any type of case in particular?
I like a challenge, a real challenge.
HMA: What was the most difficult mediation you every handled?
Dealing with the 9/11 families was by far the most difficult mediation I’ve ever done.
Because of the emotion. Agent Orange concerning Vietnam veterans was also very difficult.
HMA: As a mediator do you have any suggestions or tips for advocates in the mediation process?
Flexibility. Trying to put yourself in the other guy’s shoes. Creativity. Let’s find a way creatively and flexibly to get the thing resolved and don’t leave the mediation table without a deal.
Thank you. We appreciate your time.
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