Mediator's 'shuttle diplomacy' helped resolve mine disaster lawsuits
This is an archived article that was published on sltrib.com in 2009, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

By one count, 43 attorneys were packed into a hotel conference room last November.

And that was just the defendants' legal corps in three wrongful-death and personal-injury civil lawsuits triggered by the 2007 Crandall Canyon mine disaster.

Little wonder that this initial meeting engendered little optimism that mediator Paul Felt could help forge an out-of-court settlement of a complex case involving two distinct mine implosions, 16 different groups of family plaintiffs, seven defendants (two of which are publicly owned), six primary insurance companies, more secondary insurers and four employers, including the federal government.

But on May 12, attorneys for both sides announced a settlement had been reached before any complaints were served or depositions taken. Terms were not disclosed, other than a description that the sum exceeded the $22 million paid to heirs of the 27 victims of 1984's Wilberg mine disaster, which occurred few miles from Crandall Canyon in Emery County.

"It was probably the most difficult mediation I've ever done," said Felt, 61, who estimates he has handled more than 3,000 cases in nearly two decades of being a mediator, a profession he took up after five years representing Utah Power & Light in litigation spawned by the fire at Wilberg, which the utility owned.

"To get that many parties, that many insurance companies, that many plaintiffs to settle a case with this much feeling about it, was a difficult task," he said.

Kevin Anderson, a Salt Lake City attorney representing the Murray Energy Corp. companies that co-owned and operated the mine, concurred.

"I've been practicing law for 28 years and never heard of a case of this magnitude getting settled this early in the process," he said. "We shared information in the mediation process in which [the plaintiffs] convinced us of their damages and we convinced them it was a good time to settle. It came together, not that easily, but it came together."

The mediation process began in a weeklong session of meetings last November at the Sheraton Salt Lake City Hotel. That was a little more than two months after the third civil lawsuit was filed in the state court system over the Aug. 6, 2007, implosion that fatally buried six miners and a second outburst 10 days later that killed three rescuers and injured six more.

In relative secrecy, because "nobody wanted to do this with the glare of publicity," Felt met initially in a large conference room with the victims' families, more than 50 people in all, plus a score of attorneys representing them.

A group this large can be difficult to bring together because its individual members have such widely divergent circumstances. But Felt said "the plaintiffs attorneys did a really marvelous job with their clients, having them prepared to discuss the [financial] issues important to the settlement," rather than being distracted by real-but-peripheral emotional considerations.

The plaintiffs offered a settlement figure Felt took back to the roomful of defendants' attorneys. There was no more unanimity among this group than the plaintiffs (both sides contended later that their adversaries had a tougher job in building consensus among clients). The defendants eventually subdivided into two camps -- the Murray companies and their insurers in one, the public companies and their insurers in the other.

To all parties, Felt offered a "risk analysis," describing what he "saw in store for them if they didn't settle."

His perspective carried weight. Not only was he an experienced mediator, but Felt's background with Wilberg meant he knew mining lingo and pertinent Utah case law.

In addition, said Rick Rose, a Salt Lake City attorney representing the mine's public co-owners, Intermountain Power Agency and the Los Angeles Department of Water and Power, "Paul has a good sense for what cases are worth. He doesn't talk to you about what other cases settled for. But he has a good sense for it."

For a week, Felt "did shuttle diplomacy between the rooms, bringing the parties together in compromises ... carrying offers from one group to the other, trying to push everybody toward a compromise that made nobody happy but, in the end, they were willing to live with."

It often entailed walking a fine line between the parties.

Said Ed Havas, one of the lead attorneys for the plaintiffs: "A good mediator knows how to keep the parties at the table. ... He has to be able to ask the hard questions and point out the difficult issues that need pointing out without offending anybody or causing anyone to take umbrage or feel the mediator has adopted an adversarial position."

At times, Felt added, the role requires "putting on the velvet gloves. Sometimes you have to stroke people with the velvet. And sometimes you have to punch with the glove to get them to be realistic."

When the week began, he said the parties were so far apart "nobody would have bet a nickel that this was ever going to be happen. But one of the secrets of medication is never giving up," and when the mediation broke for Thanksgiving, he felt a settlement was a real possibility.

Attorneys for both sides took over after that, Felt said. All were experienced and recognized the financial and emotional toll a lengthy trial would exact. After all, Havas, his partner Colin King, and Fred Silvester, who separately represented a half dozen plaintiff families, were veterans of the Wilberg lawsuits.

"One thing that motivated everyone was the desire to try to take funds that otherwise would be wasted in litigation and use them toward the settlement and to avoid costly and time-consuming litigation," Felt said.

Besides, he added, "for those families to have to deal with the litigation would be just like ripping scabs off partially healed wounds. ... Healing cannot happen, especially with the death cases, until the litigation is over."

That certainly is true for Kristin Kimber Cox, whose ex-husband Brandon was killed in the rescue effort. The settlement assures that she can afford to keep their three young children in needed therapy and relieves her, in part, of having to relive the tragedy.

"I still think there are people responsible who should be held accountable for their actions, but I'm glad it's settled and there are no more meetings to go through," said Cox of Price. "Those meetings were tough because it was a rehashing of what went on. ... Life will never be the same for any of us, but [now] there's a sense of healing."

Defense attorneys also recognized the importance of minimizing the trauma, not just on the victims' families but also on other mine employees who were seared by the disaster, said Jason Hardin, Anderson's colleague in representing Murray Energy.

"We put people above profits here. All of the attorneys were committed to get it done for their clients," he said.

Hardin and Anderson said mine co-owner Robert Murray, who had a frequently combative relationship with the trapped miners' families during the rescue, shared the commitment to reach a reasonable settlement.

Murray "views himself as a miners' miner type of boss rather than a typical CEO. That was a huge motivation for him," said Anderson. "He gave us the latitude to get the best deal for the company, but he did want it to be fair to the miners and their families."

By March 10, the attorneys had made enough progress in negotiations to bring back Felt for one last marathon mediation to reach the as-yet undisclosed dollar figure.

From about 8 a.m. until 12:30 a.m. the next morning, in an office tower at 36 S. State St., he shuttled in an elevator between the plaintiffs' headquarters in Dewsnup King & Olson's 24th floor offices and the 14th floor suites of Ray Quinney & Nebeker, where the defendants' gathered.

A deal was struck. Although several more weeks were needed to pin down voluminous details, resolution was accomplished far quicker than the five years expected from litigation.

"For families that are concerned about having money to educate their children and pay mortgages, five years is a long time to wait," said Felt. "And with all of the uncertainty in the financial markets, who knows what the coal mining and insurance businesses will be like in five years.

"This brought closure and it brought certainty," he added.

mikeg@sltrib.com

The plaintiffs

Heirs and estates of nine dead miners:

Kerry Allred

Dale "Bird" Black

Don Erickson

Luis Hernandez

Gary "Gibb" Jensen*

Brandon Kimber

Carlos Payan

Brandon Phillips

Manuel Sanchez

Six injured rescuers and their families:

Joseph Randy Bouldin

Lester Day

Carl Gressman

Frank Markosek*

Casey Metcalf

Jeffrey Tripp

Family and estate of Brian Pritt, a miner who committed suicide after participating in the rescue effort

*Federal Mine Safety and Health Administration (MSHA) employees

The defendants

The Murray Energy group of companies:

Murray Energy Corp.

UtahAmerican Energy Inc.

Andalex Resources Inc.

Genwal Resources Inc.

The publicly owned companies:

Intermountain Power Agency

Los Angeles Department of Water and Power

The mine engineering consultant:

Agapito Associates, Inc.

Courts » Crandall Canyon cases accelerated by negotiations.
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