Mass Disaster Mediation: Innovative, ADR, or a Lion's Den
![handle is hein.journals/pepds7 and id is 407 raw text is: [Vol. 7: 3, 2007]
PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL
Mass Disaster Mediation: Innovative
ADR, or a Lion's Den?
Elizabeth Baker Murrill'
Imagine the following scene. An insurance company representative
who has years of experience evaluating claims and negotiating claims is
sitting across the table from a nice, elderly lady from the Lower Ninth Ward
in New Orleans.2 According to neighbors who stayed until the water rose,
her roof was torn off of her house by wind before taking on 23 feet of water.
It was a complete loss. Her insurance company is denying coverage due to
the water damage - the classic wind or water coverage dispute. She has no
education beyond high school and knows nothing about mediation or formal
negotiations, but various people suggested she might be able to settle her
claims with her insurance company if she came to this meeting. She is
currently living alone in a FEMA trailer park because she has lost
everything, including her spouse who died of a heart attack several months
after the storm. She is in limbo regarding her future. Her ability to act
depends on obtaining money to rebuild her life.
The insurance claims representative, meanwhile, is skilled in the field of
negotiations and knows immediately upon meeting her that this lady is naYve
in the mediation and negotiations process and the law, desperate for money,
and trusts her insurance company to take care of her. Additionally, as a
veteran of many claims negotiations, the insurance representative knows that
the law largely allows many kinds of misleading comments to be made
during negotiations.3
What do you think the outcome is? The main premise of this article is
that this naively unaware lady just walked into the proverbial Lion's Den.
1. Elizabeth Baker Murrill is an Assistant Professor of Professional Practice at Louisiana
State University Paul M. Hebert Law Center, and a mediator. She is currently on leave while
working at the Federal Judicial Center in Washington, D.C., as a United States Supreme Court
Judicial Fellow.
2. This is a fictional anecdote based on a hybrid of real individuals' cases. The author
volunteers in a legal aid clinic at a FEMA trailer park where many residents fit this description.
3. See Gerald B. Wetlaufer, The Ethics of Lying in Negotiations, 75 IOWA L. REV. 1219
(1991); James White, Machiavelli and the Bar: Ethical Limitations on Lying in Negotiations, 1980
AM. B. FOUND. RESOL. J. 926 (1980).
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Mass Disaster Mediation: Innovative, ADR, or a Lion's Den
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