Resolving Complex Claims With Empathy and Efficiency

Jordy Feldman shares insights on her career in ADR, the design and impact of mass claims programs and the importance of a compassionate approach to dispute resolution. 

What’s your background? What type of work do you do?

I’ve spent most of my career as an independent neutral, designing and running extremely sensitive, high-profile compensation programs to resolve mass claims outside of court. For many years, I served as deputy special master of the September 11th Victim Compensation Fund, the federal program created to compensate those individuals who died or became sick as a result of their toxic exposure. I have also designed and administered programs to compensate victims-survivors and resolve claims of sexual abuse against the late financier Jeffrey Epstein and his estate, and against clergy and faith-based organizations.

I’m drawn to this work because it’s practical, impactful and infused with a sense of humanity that is often absent in contentious litigation. Parties encounter multiple challenges when attempting to resolve cases on a mass scale through other dispute resolution mechanisms, such as bankruptcy and class actions. Thoughtfully designed and implemented mass claims programs offer a meaningful alternative by delivering individualized justice to a broad scope of eligible victims and finality for defendants in an efficient and empathetic way.

My experience running mass claims programs has also informed my work in the employment, personal injury, product liability, and business and commercial matters I handle as a mediator and ADR practitioner. I have found that taking a compassionate and pragmatic approach to resolving disputes helps de-escalate high tensions and reframe the focus, allowing for a more productive and empowering process.

What are some of the key elements of claims programs?

Claims programs can—and should—be customized in terms of eligibility criteria, valuation of losses and the claims process in order to meet the interests and needs of the parties. But there are common threads that run through the programs I've been involved in and teach to law students in a course I developed about litigation-alternative victim compensation programs. They are voluntary and confidential, and deliver compensation to affected individuals quickly. They solicit input from stakeholders, empowering them to help fashion a resolution mechanism that avoids the cost, risks and uncertainties of litigation and better serves their interests. They involve the delegation of authority to an independent, neutral third party to make decisions about the evaluation, determination and processing of claims. And they offer claimants the opportunity to share their stories and be heard.

What are some of the benefits of claims programs?

Claims programs offer many benefits for both sides in terms of timing, approach and tone.

These programs allow for a far more accelerated and cost-effective resolution of claims than litigation, which, as litigators know well, often takes years and requires significant financial resources. They can be implemented in the early stages of litigation or even pre-litigation, allowing parties to resolve large numbers of claims on a fast track rather than delaying settlements until a global resolution is reached. I have found that total alignment of interests among a large potential claimant population is unlikely. A claims program allows individual claimants to elect the route and remedy that are better tailored to their individual interests and circumstances. And defendants can move toward a measure of finality and focus their resources on the matters that require their attention.

These programs also offer a more individualized approach than the formulaic models that are often adopted in claims administration when assessing eligibility and valuing losses. One size does not fit all. They incorporate mechanisms to ensure consistency among similarly situated claimants, but also build in flexibility to allow consideration of a variety of factors that reflect the individual circumstances of each case.

Claims programs also offer a distinctly different tone than litigation. Communications with the independent neutral and her staff are inquisitorial rather than adversarial, and trauma informed. The process is not about assigning blame or discrediting survivors, but rather understanding what happened, acknowledging the harm done and validating the individual’s experience.

What types of cases are well suited for the type of claims programs you’re talking about?

I have found that this approach works particularly well in cases involving sexual abuse, catastrophic personal injury and death. Sexual abuse cases, for example, don’t lend themselves to the kind of documentary proof that one might find in a product liability case or to easily quantifiable losses, as there are a number of objective and subjective factors at play that can contribute to the valuation of the claim. These cases require a heightened level of sensitivity, compassion and discretion than a more standardized, cold, clinical approach can provide.

What key features do plaintiffs and defendants find attractive about claims programs?

From a plaintiff’s perspective, the voluntary, confidential, non-adversarial nature of the program is often a draw. Claimants can choose whether to participate in the program, whether to meet with the neutral or proceed on the papers, and whether to accept or reject the offer. In my experience, offering an opportunity to be heard is particularly important in these cases. Claimants often want to share their stories in a safe space and be treated with dignity and respect. Claimants can be assured that the deeply personal, sensitive information they share with the program will be kept confidential. They don’t have to fear being publicly exposed or attacked in order to receive compensation.

From a defendant’s perspective, a claims program run by an independent, neutral third party can demonstrate the alleged tortfeasor’s good faith commitment to resolving claims. It can provide credibility and legitimacy and allow a defendant facing significant reputational harm to shape the public narrative in a more positive way. And it can provide finality, as programs typically include broad releases in exchange for compensation.

Who do you draw inspiration from?

I’ve been incredibly fortunate to have been mentored and championed by Ken Feinberg, the go-to expert in this space—and for good reason. We met over 25 years ago when he taught my law school seminar in mass torts. This was before the claims programs that have become increasingly popular started to take shape. I had the privilege of working alongside Ken on the original 9/11 fund, developing the approach and processes that have served as a blueprint for claims programs in the years since. I learned from Ken the importance of approaching emotionally charged cases in a pragmatic but compassionate way, and how to navigate the many legal, policy, psychological and administrative challenges these complex tort cases necessarily involve.

I also continue to be inspired by JAMS neutral Judge Diane Welsh (Ret.). She possesses an indomitable spirit, a creative approach to crafting solutions and an extraordinary ability to connect with people. I’ve learned that we share a similar approach to this work—one that values individualized attention, empathy and storytelling. I am thrilled to be at JAMS and to have Judge Welsh as a colleague and valued advisor.