Moderator (00:00:00): Welcome to a special podcast series from JAMS: The Mediation Table: Conversations in Conflict Resolution. This series focuses exclusively on mediation, exploring key issues, strategies and best practices with leading JAMS neutrals and industry professionals. In this episode, we're talking about why and how mediation has become so key to resolving the most complex mass tort matters. With us are two JAMS neutrals who bring equally but different experience in mass tort mediation. Lexi Myer-Wolfe, who has settled hundreds of wildfire and pharmaceutical product liability cases, and Jordy Feldman, who has served as the independent neutral administrator of the Jeffrey Epstein Victims' Compensation Program, as well as the Deputy Special Master of the September 11th Victim Compensation Fund and other cases, resolving thousands of claims involving toxic exposures, personal injury, wrongful death and sexual abuse. Lexi and Jordy, welcome to the podcast.

Lexi Myer-Wolfe (00:01:01): Thank you. Thanks for having me.

Jordy Feldman (00:01:03): Thank you, Andrew. So happy to be here.

Moderator (00:01:05): This is going to be a great conversation. Lexi, how about you start us off? It just seems that mediation has become so key to resolving these mass tort litigation matters. What explains that?

Lexi Myer-Wolfe (00:01:18): I think when a firm represents hundreds or thousands of plaintiffs, even going to trial can be a costly process because of the amount of discovery, the preparation of experts and the actual litigation. It can be very expensive. And so, another concern is it's a very lengthy process. Courts typically only have the capacity in their dockets to hear a few plaintiff claims at a time. So, it would take years to get resolution for every individual plaintiff through the courts. I think that's why a lot of times parties turn to mediation because you can achieve a settlement and a resolution much faster.

Moderator (00:01:54): Jordy, Lexi mentioned cost and time. What are the practice level frustrations that make mass tort litigation so hard to manage?

Jordy Feldman (00:02:05): By definition, when you're talking about mass torts, you're talking about a large number of potential claimants, and oftentimes, they may have been injured in different places at different times and in different ways. So, you're dealing with claims that may arise in multiple jurisdictions over multiple years and even decades. So, as a practical matter, there are significant procedural challenges in managing the litigation. You have different laws across different jurisdictions that could result in significantly different outcomes for claimants. And then you add to that the sheer number of stakeholders who have an interest in how these cases are resolved, multiple plaintiffs lawyers and defendants, insurance companies and those interests and dynamics have to be taken into account. And to Lexi's point about the cost and the timing, that plus the risks and uncertainties that exist in the traditional litigation context are amplified in the mass tort context.

Moderator (00:03:11): Lexi, mediation is this risk management tool, so how does it help reduce those risks of litigation while still giving individual plaintiffs a sort of sense of personalized justice?

Lexi Myer-Wolfe (00:03:20): Sure. Mass tort settlements help to reduce the cost and time as we have discussed. And I think in terms of the procedural difficulties that Jordy touched on, it takes those kinds of concerns out of the picture because we're really only talking about settlement at this point. However, it's important to note that settling mass claims at one time doesn't mean that an individual claim is lost in the shuffle. Mass settlements can take many forms and mediators can work with the lawyers involved to design a process that addresses both the common factors in each plaintiff's case and the case specific factors, or the more individualized aspects of the case. For example, when I've done cases in a pharmaceutical setting, there may be base compensation for the general liability of a particular defendant, which is the same for everyone. But then there's a consideration of certain confounding factors like individual health risks or extraordinary injuries which may add or take away from that base compensation. So, this really helps to ensure the balance and to have each plaintiff really get their individual concerns addressed and to get a settlement award that would closely mirror what would happen if they were to go to trial and a jury were to hear the case at trial.

Moderator (00:04:38): Jordy, I'm trying to picture what a mass tort mediation looks like. I just see a lot of folks around the table. I see plaintiffs groups, defense counsel, insurers, funders and sometimes even regulators. So, how do you keep all these folks aligned?

Jordy Feldman (00:04:55): I find that when you're dealing with multiple parties, it's really critical to spend a significant amount of time having separate conversations with each of the stakeholders to understand their perspectives, their positions, their interests and their needs before you even step foot in a formal mediation session. It's not uncommon to have parties even on the same side of the V have very different viewpoints about how they see the facts in the law and how they would like to see a case resolved. So, having pre-session meetings and calls allows you to gain a better appreciation of what they're looking to do. Then you would be able to ascertain in a group dynamic. And it also allows you to identify certain common threads and interests among the various stakeholders that you can capitalize on to start to build consensus. For example, I find that instead of leading with dollars, which are often wildly disparate at the start and can cultivate negative feelings across the table, it can help to start with structure, what a settlement structure might look like without reference to numbers and build that from the bottom up. It definitely takes some discipline and patience, but forces the parties to put forth a valuation that's rooted in objective criteria and can help to mitigate some of the reactive devaluation dynamics that come from tossing numbers around that don't have a solid and articulable foundation.

Moderator (00:06:36): Lexi, Jordy mentioned having sort of these individual conversations to begin a mediation before you even really start to get into the nitty gritty. What techniques have you found the most effective in terms of just structuring how the negotiation plays out?

Lexi Myer-Wolfe (00:06:50): I think what Jordy said is very important. This is really when you have to exercise your ability as a mediator to listen, because like we were saying, there are so many different ways that the parties look at these claims, even if they're on the same side. Some may think that they have stronger cases or they've contributed more to the case and they should get more than other firms on their side. Other situations may arise when you have firms that think that their defendant may have less liability than other defendants and they want to contribute less to a settlement. So really understanding what each party is trying to gain from a settlement is very important. And this is a situation I think where co- mediation can be especially helpful where you have more than one mediator so parties really feel like they are getting their needs attended to and then also the mediators who have different backgrounds and maybe different combined experiences can really play off of each other, understand what's going on in the settlement on different sides and give each other ideas and talk to the different parties. Sometimes mediators have better relationships with certain parties than others, and so I find that a collaboration in this regard can be really helpful.

Moderator (00:08:08): Certainly makes sense. All mediators bring different things to the table, so why not bring in more specialties if you can. Jordy, mediation at this scale really must test your skills in terms of reading the room. This is a classic question for a mediator, but how do you know when to push and when to step back?

Jordy Feldman (00:08:28): A dear colleague and veteran mediator likes to say: at the opening session, I'm here on behalf of settlement and I do think that every action and every conversation and every interaction with the parties and counsel should be in service of that end. And what that may mean is allowing the parties and counsel to vent, to get emotional. When you're dealing with such emotionally charged cases to insist that emotion has no place in the resolution process seems unrealistic. Now it's my responsibility to make sure temperatures don't run so high as to compromise productive conversations. And it's a very different dynamic if we're talking about a conversation with counsel at a mediation as opposed to a conversation with a claimant in the context of a claims program. If I'm meeting with an individual claimant, I'll go into the meeting with some questions to try to elicit information that might bear on my evaluation of the claim. But I am hyper attuned to the claimant and looking out for cues that may signal a certain level of discomfort. Paramount in my mind is always creating a safe space for them to share the experience that they probably least want to talk about and treating that person with dignity and respect and compassion.

 So, I'm constantly poised to pivot. Now there is a certain level of discomfort in all of these conversations because someone is sharing with you something incredibly personal and private and traumatizing and so I do think you do a great disservice to a claimant and the process if the conversation is purely clinical. From my perspective, neutrality and empathy can coexist but to circle back to your question, it does require constantly reading the room and making in-game adjustments to ensure that the conversations are productive and that there's value to them, not only to me as the neutral, but also to the claimants. It requires endurance. These are not cases that are resolved in a day or two. It requires commitment to staying focused and persistent and energized and looking to try to neutralize the fatigue that inevitably sets in over time.

Moderator (00:10:59): I'm sure these matters really do test your emotional intelligence and not just your legal background. I want to switch gears to talk a little bit about allocation methodologies, which I know is so important to these mass tort cases. It's really what I think both of you have a lot of experience in. Lexi, I'll start with you. Allocation is never a one size fits all. I think we all understand that. But what makes designing allocation models in your line of work? Wildfires, for example, so challenging?

Lexi Myer-Wolfe (00:11:34): I think the challenge is understanding the types of injuries that a settlement program is meant to address. Is it a certain type of physical injury, which we see a lot in pharmaceutical cases? Or is it more of an economic injury like we see in the wildfire cases? Wildfire cases are particularly challenging in an allocation setting because no one fire victim has the same injury. Broadly, you can have categories like total losses or partial losses or smoke and ash losses, but each home is different, and each property has a different character. Each evacuation story has a different level of trauma. After the fire, some people may have the resources to rebuild and others may not, which can cause homelessness and other serious problems. There might be some people covered by insurance and other people who aren't. And even if you have the resources to rebuild permitting processes and a lack of skilled contractors can delay the process. And from the mental health side of things, some people suffer with PTSD, some people have physical conditions due to smoke inhalation… things that can change your life forever. So, using a standardized allocation process to address all of those various nuances is difficult. You really have to take into account all of the issues that victims may face when they're looking at a rebuilding process or looking at trying to put their life back together.

Moderator (00:12:56): And Jordy, do you want to jump in on that human dimension? How do you value the abuse either survivors have gone through?

Jordy Feldman (00:13:07): The human element is so important and designing a process that honors a claimant's humanity is so important. These cases involve such deeply personal traumatic experiences that continue to haunt a claimant throughout their life and impact them physically and emotionally and psychologically and professionally. One of the common threads in these tragic situations is that the claimant was stripped of control and a sense of agency and there's often a sense of helplessness associated with these events. The aphorism, the action is the antidote to despair, something like that comes to mind. Claims programs and other ADR mechanisms that through settlements and otherwise that adopt choice and voice as guiding principles can vest claimants with some measure of justice. They can empower them to make choices about whether they want to participate, whether they want an opportunity to tell their stories and be heard in a confidential setting, whether they'll accept or reject an offer. Treating claimants with dignity and respect is critical, validating their experience. So often, people are scared or embarrassed to speak up or feel that their voices haven't been heard, or that people in positions of power or authority turned a blind eyes. So, providing a safe space for them to tell their stories and acknowledging their suffering can be as, if not more, meaningful than the compensation itself.

Moderator (00:14:50): Jordy about, regarding damages, right? They vary dramatically from toxic exposure medical claims to wildfire property losses. How do those differences shape the actual mediation process?

Jordy Feldman (00:15:07): You're definitely looking for different kinds of proof. If you're looking at economic losses or property damage versus non-economic losses like pain and suffering, and you're valuing losses in a different way. It can be challenging to quantify pain and suffering losses based on documentary evidence. You may have medical records or therapist notes, but I find, particularly in the sexual abuse context, for example, that personal narratives, whether it's written or oral testimony can be a critical part of the process, that opportunity. If you're looking at purely economic losses, you want to look at information demonstrating out of pocket lost or diminution of income related to the triggering event.

Moderator (00:15:59): Lexi, I wanted to talk to you about just this idea that mediation on the one hand promises individuals an opportunity to be heard but it also promises the process to be efficient. How do mediators manage that tension between the individualized causation proofs and the need for efficiency?

Lexi Myer-Wolfe (00:16:22): I think the good thing to note about all mass tort settlements is that generally they are more efficient than having to go through the court system, as we discussed. So, it's already built into the process that claimants will get a more efficient fast less costly result and get an opportunity to be heard sooner, get their stories out, be able to recover something and allow them to move on. So, in that way, I think just mediation and doing a settlement program in general helps with the efficiency of the overall process in moving through a litigation. There are ways to structure an allocation or a claims process that can manage multiple plaintiffs in an efficient way, but still addressing the individual causation factors and still allowing plaintiffs to feel like they do have that voice… the agency that Jordy talked about, time and the space to feel like they're being understood.

Moderator (00:17:25): And Jordy in these large-scale mediations, I’m sure you've seen certain plaintiffs have lots of resources at their disposal, but then you see, some who are just lumped in with a broader group. How do you make sure that all those voices are heard and that you maintain a level playing field?

Jordy Feldman (00:17:44): Yeah, equity is such a critical part of these programs. You want to treat similarly situated individuals in a similar way. In the programs I've been involved with, we've made sure that unrepresented claimants are treated the same way as those or who are represented and if a lawyer makes an argument, then we adopt it with respect to a particular claimant. And similar circumstances apply in another claim of an unrepresented claimant, we'll apply it there too. There are other ways of trying to level the playing field. In the sexual abuse context in the Epstein case, which came about in the midst of statute of limitations reform across the country, we decided to eliminate statute of limitations considerations to reflect the evolving legal landscape and to level the playing field. If those cases were to proceed in the tort system, you might have two victims who suffered the same abuse for the same amount of time at the same age, with the same impact, but because it took place in a different jurisdiction, that claim may be treated very differently in the litigation context.

Moderator (00:18:59): The real-world impact that these settlements have on the people involved, I want to ask both of you what that looks like in your experience. You all have been involved in some of the most high-profile mass torts in recent years, but what does closure actually look like for the people involved, Lexi?

Lexi Myer-Wolfe: (00:19:22): Closure is a tough word, right? Because a lot of the, especially wildfire, victims that I deal with will never achieve closure because what they've been through is a trauma and for many of them this will go on and be an important part of their experience for the rest of their lives. And so, when we talk about closure in the settlement context, all we can really help people do is achieve some kind of measure of justice. They get a monetary settlement against the alleged offender and then they can use that money to rebuild, move on… close this particular chapter. And that's the best that I feel we can hope for in settlement, is to allow people to move on with their lives and hopefully restart something new that can generate a lot of happy memories.

Moderator: (00:20:16): And Jordy, same question to you. How do you see the process affecting these individuals that go through this?

Jordy Feldman (00:20:24): My perspective is very similar to Lexi's. I think closure is elusive for people who've been through a traumatic experience. Compensation can provide some measure of financial relief and some measure of justice and healing. But I doubt that resolving a claim through a claims program or mediation closes the book on that aspect of their lives. One of the things I'm reminded of… something a leading doctor at the World Trade Center Health Program (which is a companion program to the 911 Fund) used to say in terms of her role… She said, “I can't undo what happened to them, and I may not be able to change the outcome, but I'm going to do everything in my power to make it suck less.” I do believe that approaching these cases and these individuals with a sense of humanity and sensitivity can help to mitigate some of the pain and inject some hope that someone's story matters, even if it doesn't look like closure at the end.

Moderator (00:21:31): Lexi, Jordy, this has been a fascinating conversation. I want to ask both of you to look forward in mass tort mediation. Obviously, it just continues to grow in popularity. Whenever there's a mass tort, it seems like mediation is often the most viable path forward. How do you see it evolving going forward? What are you looking out for? Lexi? I'll start with you.

Lexi Myer-Wolfe (00:21:58): I think especially at JAMS, we've made it a priority to understand mass tort mediation and recruit neutrals who have a background in it and really care about what they're doing. So, for me, the future of mass litigation at JAMS is excellent in terms of the quality of people that we have that are available to address all of the various concerns we've talked about today. Everything from designing an allocation process to hearing claimants and really understanding them to hearing parties and lawyers and dealing with the various layers of complicated conversations that you have to have. So, I feel that as mass torts grow and continue to be litigated, people will continue to seek out qualified neutrals to do this type of work.

Moderator (00:22:53): Jordy, final thoughts from you about the future of mass tort mediation.

Jordy Feldman (00:22:57): Look, I think we'll continue to see these cases involving mass claims and we've seen how certain mechanisms to try to provide aggregative solutions like bankruptcy have hit roadblocks. So, offering alternative ways to try to resolve cases on a mass scale, while delivering some measure of individualized attention, I think will continue to gain traction. This is not an area of law that’s gathering dust on the textbooks on a shelf in the basement. This is constantly evolving and requires creativity and flexibility. One thing I just want to pick up on that Lexi said earlier, too, is I hope that part of the future of mass tort mediation and alternative dispute resolution includes some more involvement of co-mediation and co-special masters with complimentary skills and subject matter expertise. Because you're dealing with so many issues and interests there, there really is a great value in having multiple people from a neutral's perspective that can really help pressure test certain assumptions and make the process more robust and efficient.

Moderator (00:24:27): Jordy, Lexi, I want to thank both of you for giving us a really insider's view of this fascinating area of law mass toward mediation. It's been a really interesting conversation. Thanks for sharing your thoughts.

Lexi Myer-Wolfe (00:24:39): Thank you so much for having me.

Jordy Feldman (00:24:41): Thank you, Andrew.

Moderator (00:24:44): You've been listening to a podcast from JAMS, the premier provider of alternative dispute resolution. Our guests have been Lexi Myer-Wolfe and Jordy Feldman of JAMS. For more information about JAMS, please visit www.jamsadr.com. Thank you for listening to this podcast from JAMS.