Mass Disaster Mediation: Innovative ADR, or a Lion's Den? [1]

Murrill begins Mass Disaster Mediation: Innovative ADR, or a Lion's Den? with the story of an elderly woman from the Lower Ninth Ward in New Orleans who lost her home in Katrina. Her insurance company has denied coverage because of the water damage done to the home, and she is attending a meeting with the insurance company in order to settle her claim. The woman has no education beyond high school, knows nothing about mediation or formal negotiations, is currently living in a FEMA trailer park, has lost her spouse, and cannot plan her future until she obtains money. [2] The insurance claims representative, in contrast, is skilled in negotiations, knows that the woman is desperate for money and trusts her insurance company, and knows that the law allows misleading comments to be made during negotiations. [3] The author's depiction of this meeting aims to expose the obvious imbalance in negotiation leverage that the respective parties have in this situation and the inevitably unjust outcome that will result from the imbalance.

In part one of the article, Murrill gives the reader information on mass disaster mediation programs. [4] The American Arbitration Association was the first to launch a mass disaster mediation claims resolution program after Hurricane Andrew and several states have used this program as a template for their own mass disaster mediation programs. [5] The author warns the reader that some of these programs have significant design differences that determine whether or not they lead to successful, fair outcomes. [6]

Part two of the article examines the political, cultural, and economic factors that inform these programs. [7] Asymmetrical costs between parties, state actions that send messages to insurance companies, and the power imbalances are all factors that determine the effectiveness of alternative dispute resolution programs. [8]

Part three of the article discusses the lack of attention "given to the cognitive thought processes involved in making a decision and impediments to that process" in the study of mediation and negotiations. [9] Murrill discusses, specifically, the devastating psychological impact of a natural disaster and the long-term and short-term responses that effect a victim's decision-making in the wake of a disaster. [10]

The author calls attention to the impact of time-pressure on decision-making capacity because in the context of mass mediation programs, the mediations only last two hours. [11] This is problematic because research suggests that "time pressure degrades" decision-making performance because victims tend to "filter information that needs to be processed" or "consider all alternatives based on a single criterion rather than considering each alternative sequentially." [12] Murrill cites Barnes' and Komarita's study that showed "when pressure is asymmetric, i.e., when one party bears a higher cost if negotiations fail, the party with the greater costs made more concessions and settled for a lower outcome than the party without the costs." [13]

The fourth part of the article makes recommendations for system designers and mediators based on implications gathered from the above research. [14] Murrill recommends that system designers create "competence-driven" designs that have "multiple end goals and relevant outcomes" that aim to "constructively contribute to the recovery process in the larger community and at the individual user level." [15] A program without this end goal in mind may leave the mediation process feeling as though they have been victimized further, and in Murrill's view this means the system is a failure. [16]

The author further recommends that mediators need to "(1) be able to recognize when a participant's cognitive faculties are compromised by trauma; (2) know the consequences of impeded judgment; and (3) have considered options for handling the situation." [17] The mediator must be prepared for the victim's need to ventilate, or conversely, the victim's psychological numbness to their situation. [18] In addition, the mediator must be careful that the victim not have any delusions about the mediator's role in the process. [19] In order to aid the mediator with these obstacles, Murrill supports system designs that provide advocacy assistance to victims at no cost in the context of mass disaster mediations. [20]

The article concludes that natural disasters create victims whose cognitive capacities are severely impaired and are therefore not prepared for traditional system designs. Murrill emphasizes that competence and fairness should be stressed in designing mass disaster dispute resolution programs, and that participants must be better educated on the process of mediation before they arrive at the table. Competence and fairness can be achieved not only by providing specialized training for mediators but also by providing training and advocacy assistance for the victims of the catastrophe. In order to create these improved systems, Murrill suggests that law schools get involved in these programs by providing neutral territory to participants, and giving students the opportunity to assist victims as advocates. Furthermore, Murrill suggests that settling great numbers of claims should not be the end goal of mass disaster programs and that studies should be done on how participants feel about their settlements one or two years later. The results of that study could be used to inform system designers and help determine more appropriate end goals.

[1] Elizabeth Baker Murrill, Mass Disaster Mediation: Innovative ADR, or a Lion's Den?, 7 Pepp. Disp. Resol. L.J. 401 (2007).

[2] Id.at 401.

[3] Id.

[4] Id.at 404.

[5] Id.at 405-406.

[6] Id.at 406.

[7] Id.at 407-408.

[8] Id.at 407-411.

[9] Id.at 411.

[10] Id.at 412-413.

[11] Id.at 416

[12] Id.

[13] Id. at 417 (citing Komarita & Barnes, Effects of Pressures to Reach Agreement in Bargaining, 13 J. of Personality and Soc. Psychol. 245 (1969).

[14] Id.at 418-423.

[15] Id.at 419.

[16] Id.

[17] Id.at 420.

[18] Id.at 422.

[19] Id.

[20] Id.at 423.