by By Benjamin Rajotte and Vikram J. Kapoor*
Imagine that you were hurt by something beyond your control. Maybe a faulty product, or a commercial plane crash. Something big and painful to us and many other people. Amidst the emotional turmoil, we might be fairly motivated to recover for our losses.
But what if we could not recover anything under the law…what then? Or what if we knew that a lawsuit would take a long time and cost a great deal, with plenty of uncertainty? And though we may appear formally before a decision-maker and make statements on the record, would we ever really feel heard and understood? The pain would certainly linger.
Dispute management systems (also known as claims facilities) have been on the rise in recent years. You may have heard that funds were established for victims of September 11th and their families, [footnote] 1. September 11th Victim Compensation Fund, at www.vcf.gov (last visited June 1, 2016). [/footnote] as well as for those affected by the British Petroleum (BP) oil spill. [footnote] 2. Gulf Coast Claims Facility (GCCF), at www.gulfcoastclaimsfacility.com (last visited June 1, 2016); Deepwater Horizon Claims Center, at www.deepwaterhorizoneconomicsettlement.com (last visited June 1, 2016). [/footnote] Claims facilities were also created to address faulty automobile ignition switches, [footnote] 3. See Mike Spector, GM Ignition-Switch Fund Offers $595 Million to Victims, Wall St. J. (Dec. 10, 2015), at www.wsj.com/articles/gm-ignition-switch-fund-offers-595-million-to-victims-1449755042. [/footnote] and a number of other conditions that give rise to “mass claims.” [footnote] 4. See, e.g., Int’l Inst. for Conflict Prevention and Resolution, Master Guide to Mass Claims Resolution Facilities (2011) (describing examples of mass claims resolution facilities with guidance and best practices); Am. Arb. Ass’n, Mass Claims ADR Programs and Federal ADR Programs, at www.adr.org/aaa/ShowPDF?doc=ADRSTG_004209 (last visited June 1, 2016) (describing additional examples). [/footnote]
These voluntary systems offer the possibility of a process that is speedier and less burdensome on participants than formal litigation. In one rare example, the Special Master of the September 11th Victim Compensation Fund, Kenneth Feinberg, even went to a potential claimant’s home and pleaded with her to take the millions of dollars that were owed to her. [footnote] 5. Ken Feinberg, in addressing the Mid-Atlantic Chapter of the American Bar Association Section of Dispute Resolution (2015). [/footnote] Dispute management systems clearly bring unique value.
This all sounds great in theory, but in practice it is an art and a science applied to unique circumstances with significant variability in facts, standards, institutions, and mandates. The truth is that “good process” requires resources – time, money, personnel, infrastructure, and the like – as well as expertise, institutional will, and innovation. Even after examining comparative models for lessons learned, some adjustments are still likely to be needed as you go along. With scale and complexity, there will be expectations from diverse stakeholders with different interests involved from the beginning. This all continues until the process is complete.
No one said that this kind of balancing act would be easy. The public burdens of due process, by analogy, are well recognized in administrative law jurisprudence. The Supreme Court’s decision in Mathews v. Eldridge [footnote] 6. 424 U.S. 319 (1976). [/footnote] is a paradigmatic example through its “balancing test” to measure “what process is due,” and when it is due (pre- or post-deprivation), in informal agency adjudications. Whether instituting due process in agency adjudications, or designing mass claims facilities, policymakers and stakeholders have often struggled with these questions.
Process has the potential to be a field-leveler, especially for people who have undergone significant and even incalculable loss or have otherwise felt marginalized by power asymmetries or circumstances out of their control.
In a mass claims facility designed for many people whose losses cannot necessarily be repaired through any outcome, process is all the more important. It becomes rule of law, applied in scale to communities and other diverse segments of society.
System design can either advance or signal tensions with some features of the Comprehensive Law Movement. This includes how each person navigates through the process and the demands expected from them along the way, how much individualized process each person is afforded, and the manner in which their voices are heard.
Susan Daicoff’s influential scholarship on this subject details a “comprehensive, integrated, humanistic, interdisciplinary, restorative, and often therapeutic approach to law and lawyering.” [footnote] 7. Susan Daicoff, Law as a Healing Profession: The “Comprehensive Law Movement,” 6 Pepp. Disp. Resol. L.J. 1, 1 (2006). [/footnote] As Daicoff outlines, the Comprehensive Law Movement revolves around two central themes:
First, [it] explicitly recognizes and values the law’s potential as an agent of positive interpersonal and individual change and seeks to bring about a positive result (such as healing, wholeness, harmony, or optimal human functioning) as part of the resolution of legal matters. Second, [it] integrates and values extralegal concerns – factors beyond strict legal rights and duties – into law and legal practice. These “rights plus” factors include: needs, resources, goals, morals, values, beliefs, psychological matters, personal wellbeing, human development and growth, interpersonal relations, and community wellbeing.” [footnote] 8. Id. at 1-4. [/footnote]
Lessons from the field of ADR similarly teach us not to reflexively view all disputes as a zero-sum game, but rather to be inquisitive, unpack assumptions, and look deeper – and where practicable, in a more collaborative and multidimensional way – into the nature of the parties’ interests and solutions.
While certain lines need to be drawn, as lawyers we should discover and not lose sight of the client’s ultimate objectives in our roles as diligent agents and advisors. [footnote] 9. See Am. Bar Ass’n, Model R. 2.1 (“In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”). [/footnote]
These approaches are instructive because they highlight the importance for voices to be heard, even if the relief sought cannot be granted under prevailing norms. Providing meaningful space for human interaction and connection is essential in a mass claims setting. As Elizabeth Schneider writes: “Grief and trauma are always in the background of tort litigation or claims resolution process – they are the ‘silent partners’ in these cases.” [footnote] 10. Elizabeth M. Schneider, Grief, Procedure, and Justice: The September 11th Victim Compensation Fund, 53 DePaul L. Rev. 457, 465 (2003). [/footnote] The pure legal dimensions of the issue can be too difficult to separate from the overall fabric of the ordeal. Most importantly, experience cautions that it may be counterproductive and unnatural even to try.
In addition to having a fair and consistent methodology that appropriately balances standardization with more individually qualitative or subjective considerations in fashioning an outcome, we should aspire to create a process that accounts appropriately for the realities of the human condition. As Nancy Welsh writes, the Supreme Court’s due process jurisprudence including Mathews underscores the importance of system design insofar as it “contribut[es] to achieving reasonably accurate results,” while “[m]ore recent research has shown … that the opportunity for voice has an importance that stands on its own.” [footnote] 11. Nancy A. Welsh, Remembering the Role of Justice in Resolution: Insights from Procedural and Social Justice Theories, 54 J. Legal Edu. 49, 53 (2004). Daicoff similarly observes that people “want a voice” and “an opportunity to tell their story.” Daicoff, supra, at 18. [/footnote]
The outcome is unquestionably important because it affects the lives of individuals and families, which may ripple through communities and generations. We do not mean to suggest that these perhaps more “holistic” goals of “good process” should offset or mitigate problems with system design, implementation, or outcomes. Rather, an opportunity to promote healing can be lost unless they are kept in mind.
Even the “best” outcomes may not be recognized or embraced as such, and the trust and credibility that undergird the process may be unnecessarily brought into question, if participants feel disempowered or that they were not given a “fair shake.” As Welsh writes in terms of procedural justice:
[P]rocedural elements … do more than just make the disputants feel good. In fact, disputants are more likely to conclude that they have received distributive justice to the extent that they perceive that they have been treated in a procedurally just way…. And, if people perceive that a process was procedurally just, they are more likely to view the social institution that provided the process as legitimate. [footnote] 12. Id. at 52-53 (emphasis in original). The article also describes willingness “to comply with the outcome” as a third benefit of participants feeling that they received fair treatment. Id. at 53 (emphasis in original). [/footnote]
All of this essentially means that, in a mass claims facility, process should be measured by outcomes, but also by goals including the empowerment, catharsis, and dignity and respect that it may promote.
These objectives matter, and they should influence procedural elements – for instance how a decision-maker measures facts and burdens against standards in fashioning an outcome, and overall how participants are treated within the system. While this is not purely evidentiary or outcome-driven in nature, it is just as essential to the process’s viability.
* Benjamin Rajotte and Vikram Kapoor are employees of the Federal Emergency Management Agency (FEMA). They can be reached at brajotte@yahoo.com and vikramjkapoor@gmail.com. The views expressed here are their own and do not necessarily represent the views of FEMA or the United States government.
Image by Andrea Booher – This image is from the FEMA Photo Library., Public Domain, https://commons.wikimedia.org/w/index.php?curid=8067977