The recently announced proposed settlement of rescue workers’ claims arising out of the City of New York’s response to the Sept. 11 terrorists attack on the World Trade Center is an example of a good negotiated settlement on the most massive scale. About 10,000 people claim to have been involved in the rescue and clean-up efforts, and to have incurred some illness or injury in the process. Now, with trials set to begin in a couple of months, the claimants, the City, and the fund set up to compensate the workers have come up with a plan to distribute the money. The proposal still needs to be approved by a federal judge and 95% of the claimants, but with both the City and the claimants’ attorneys recommending it, that is likely. Like any personal injury settlement, some claimants will be unhappy. But they will have traded an uncertain claim and the risk of coming up empty-handed for a certain payout. The class action settlement proposal contains a mechanism for determining individual awards based on duration and nature of the workers’ exposure to dangers at the site and on each workers’ actual and potential medical history and condition. Apparently, after nearly 8 years of litigation and with juries almost in the box, both sides finally had enough information to adequately judge the costs, risks and potential rewards of further litigation. As I pointed out in my last post, mediation works best when the participants know their alternatives to a negotiated agreement. I don’t know if the parties actually used a mediator to help them reach this agreement. If anyone knows and cares to comment here, I would welcome your insight.
A few days after my last post, Lee Jay Berman blogged about the problem with President Obama’s attempts to mediate Congressional reforms, such as health care. He noted that the President is not a true neutral. In Berman’s words “He has a dog in the fight …” Berman suggested that what is needed is for the President to appoint a true neutral third-party to mediate the legislative disputes. I agree. And the first thing that mediator should do is to help each side determine their alternatives to a negotiated agreement. Their “jury” (i.e., voters) will be in the box in November. Perhaps that is their Sword of Damocles.