GPSolo March 2007
Working Toward Critical Mass: FEMA, ADR & Disasters
Alternative dispute resolution (ADR) is becoming more prevalent in the disaster context, and both the Federal Emergency Management Agency (FEMA) and local agencies are working to use ADR whenever possible in response to disasters. President Carter created FEMA in 1979 to alleviate loss, suffering, and damage caused by disasters. The statutory mission places priority on saving lives and protecting property. ADR helps FEMA in support of this mission.
National ADR work. The ADR office hires external ADR professionals for various programs. When insurance companies that administer the National Flood Insurance Program and FEMA disagree, flood insurance and mitigation employees participate in arbitrations as set forth in the National Flood Insurance Act. FEMA’s ADR office handles all of the logistics for those arbitrations and contracts with arbitrators nationally.
FEMA’s disaster work creates a fair amount of national ADR opportunities.
FEMA has been interested in the mediation programs sponsored by the state insurance commissioners to assist disaster victims with their homeowner’s insurance claims. After Hurricane Katrina, however, FEMA found it was paying the limit of most flood policies, and, as such, mediation was not warranted. FEMA continues to advocate ADR, as does Congress.
After the Los Alamos, New Mexico, fires of 2000, Congress charged FEMA with administering all of the victims’ claims. In our nation’s history there has only been one other catastrophe for which our government has admitted responsibility: the Teton Dam Collapse of 1976. In both cases Congress quickly set about making the victims whole. FEMA was given 45 days to open a claims office and publish interim regulations, and 180 days to determine individual claims compensation. The law required FEMA to create an arbitration program for victims who were dissatisfied with the FEMA award, giving claimants an opportunity to present their claims to a neutral, non-governmental person.
After one hurricane, FEMA hired mediators from JAMS, a provider of private dispute resolution services. FEMA was having difficulty determining who had actually performed the work under a debris removal contract. Seven different contractors stated that they had performed the work, and each submitted a similar bill. The parties were fighting among themselves as to which contractor was the proper recipient of the FEMA funds. FEMA placed the money in escrow and waited. But it became apparent that the parties were deadlocked. Contractors were blaming FEMA for ruining their companies and also their lives.
FEMA offered to hire a mediator for the dispute. All seven contractors consented, and two nationally renowned mediators were hired. The issues were very complex and involved high levels of antagonism, threats to personal safety, threats of suicide, bankruptcy, and media manipulation. The mayor of the community was arrested and went to jail for fraud. Against all odds, after three intense days, the mediators managed to create agreement among all the parties. Each participant, as well as FEMA, was extremely pleased with the result. FEMA’s disaster work creates a fair amount of national ADR opportunities.
Community ADR work. State and local communities use ADR to support efficient reconstruction after a disaster. At an ADR conference I met a woman who said that she had worked as a mediator in a FEMA disaster. She explained that after devastating floods in her northwest state, people believed that their leaders were either inept or disgracefully apathetic. The local government and the community could not work together, and all dealings were laced with bitterness and acrimony. The local government asked FEMA for help. They wanted facilitation and mediation services, and they had specific local ADR professionals in mind. This seemed crucial for the community to begin its work of healing and rebuilding. FEMA agreed and paid for the services. Local municipalities understand to a greater extent the value of ADR in the disaster process.
In the aftermath of Hurricanes Katrina and Rita, Louisiana and Mississippi created mediation programs to resolve disputes between homeowners and their insurance carriers. The American Arbitration Association was selected to administer the mediation programs, which are voluntary for policyholders and mandatory for insurers. The programs could help speed up the resolution of these claims.
Volunteer ADR work. Although FEMA’s mission is to alleviate hardship for victims, people often ask if FEMA can coordinate the public desire to help. ADR lawyers have a multitude of talents to contribute.
Congress authorized FEMA to help low-income individuals secure adequate legal services after a disaster. FEMA works together with the state and local bar associations to ensure proper representation for people who are at a disadvantage. FEMA started a program with the Young Lawyers Division (YLD) of the ABA. After a disaster, YLD often becomes the umbrella organization coordinating local lawyers who want to volunteer and work directly with the victims. FEMA helps YLD set up a hotline or a station at the disaster recovery centers. Most of the time, these volunteer lawyers give straightforward legal advice about estates, lost documents, consumer protection and fraud, landlord/tenant issues, insurance problems, home repair/contracting issues, and mortgage concerns.
The ADR professionals are aptly suited for this work. Generally, the legal volunteers provide a listening ear and help with practical problem solving. Indeed, when we set up the program in one state, the bar was very clear that, owing to insurance liability issues, the volunteer would be providing legal “information,” not legal “advice.” ADR professionals often have the legal expertise in addition to the well-honed skills of deep listening, empathy, compassion, validation, and respect for human dignity. This breadth of skill is incredibly empowering for victims.
ADR work within FEMA. After the events of September 11, 2001, Congress passed the 9/11 Heroes Stamp Act of 2001 to afford the public a direct and tangible way to provide assistance to the families of emergency relief personnel killed or permanently disabled in the line of duty in connection with the 9/11 attacks. The U.S. Postal Service issued a semipostal, a stamp with a higher price than usual that allows the buyer to contribute to the cause illustrated on the stamp.
FEMA is responsible for administering the $10.5 million in collected funds from the semipostal, and the ADR office has been asked to play the role of a third-party neutral on behalf of the claimants. FEMA created a right of appeal from its award decision and placed that function in the ADR office. Several lawyers were hired to help with the semipostal claims/appeals.
Last summer, FEMA decided to begin a national cadre of ADR professionals, employed by FEMA, to assist FEMA workers at disaster sites. They help employees with disaster-work conflict. This cadre does conflict coaching, dispute resolution training, mediation, and facilitation at the disaster field offices across the country.
ADR is a growing phenomenon in the disaster arena. FEMA has hired first-rate arbitrators and mediators throughout the United States. State and local governments are discovering that conflict, which can impede rebuilding after a disaster, can be effectively addressed by ADR professionals. Moreover, these professionals can help with community preparedness and mitigation. FEMA facilitates a Disaster Legal Services program ideally suited to the ADR attorney. Finally, FEMA is being pro-active in using ADR for its own benefit in the disaster field office and in its operations.
FOR MORE INFORMATION ABOUT THE SECTION OF DISPUTE RESOLUTION
This article is an abridged and edited version of one that originally appeared on page 9 of Dispute Resolution Magazine, Fall 2006 (13:1).
For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.
Periodicals: Dispute Resolution Magazine, published quarterly; Just Resolutions, e-newsletter produced ten times per year.
Cynthia Mazur is the Alternative Dispute Resolution Director for FEMA in Washington, D.C., and Chair of the Workplace Section of the federal Interagency ADR Working Group. She can be reached at firstname.lastname@example.org.