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Peacemaker of the Year

by Joe Markowitz
November 2012

Mediation's Place by Joe Markowitz

Joe Markowitz

Kenneth Feinberg was the keynote speaker at the SCMA fall conference yesterday, where we presented him with the Cloke-Millen Peacemaker of the Year Award. Feinberg gave a fascinating talk on the dilemmas involved in allocating compensation to victims of such famous disasters as the BP Gulf Oil spill, the 9/11 attacks on the World Trade Center and Pentagon, and the recent shootings in Aurora, Colorado. In each case, Feinberg was largely successful in avoiding protracted litigation and compensating victims relatively quickly, using criteria that he and his team largely had to invent. Even so, few victims of these disasters chose to go to court after taking the route of an established compensation scheme, even when they retained that option. Feinberg views the cases in which he was appointed as Special Master, despite their seeming frequency in his world, as relatively unique. Feinberg thinks it is difficult to apply the lessons he learned in administering these disaster funds, to other situations, even to other mass torts, because these highly-public tragedies each provoked such a special response unlikely to be duplicated in the future.

The experiences that might be more applicable to the kinds of cases handled by those attending the conference involve disputes that arise between claimants to a fund. Feinberg noted the importance of both the absolute and relative amounts of compensation awarded to disaster victims. People always seem to compare what they received to the awards they think others in similar or different situations received. Feinberg also gave examples of some of the conflicts between family members or neighbors, such as a conflict between the fiance and the parents of one of the World Trade Center victims. In these situations, Feinberg sometimes relied on teams of mediators to resolve such disputes, and sometimes set up what can seem like arbitrary rules that determine who gets paid, and how much.

We had an interesting discussion at the SCMA dinner Friday night on the values of neutrality and fairness, or maybe neutrality vs. fairness, as experienced by mediators. The discussion was provoked by a talk by Roger Wolfson, a writer for Fairly Legal. Feinberg, sitting in the audience this time, had trouble understanding how a mediator could ever lose sleep over achieving a successful settlement. Many of the mediators in the audience, on the other hand, had at times experienced some discomfort when parties agree, under pressure of pending litigation, to resolutions that seem unfair to themselves, or to the mediator.

I may have more to say about this conference, but for now I just want to congratulate newly-inaugurated President Wendy Kramer and her team for a highly successful event!

Biography


Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both in New York then in Los Angeles, then returned to practicing with a small firm and on his own.  In addition to general commercial litigation, Mr. Markowitz has expertise in  intellectual property, employment law, entertainment law, real estate, and bankruptcy litigation.  Mr. Markowitz has managed his own firm since 1994. Mr. Markowitz was trained as a mediator more than 15 years ago, and has conducted a substantial number of mediations as a member of the Mediation Panels in the Los Angeles County Superior Court, the District Court and Bankruptcy Court in  the Central District of California, as well as private mediations.  He has served since 2010 as a board member of the Southern California Mediation Association.   



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Website: www.mediate-la.com/

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