(Editors Note: I recently interviewed Kenneth Feinberg for Mediate.com about his career over the last 30 years. He has managed the settlement of complex and difficult claims in the wake of some of the largest catastrophic events we have faced as a society and has pioneered an approach that has altered, not only the legal landscape, but also our culture. While not formally mediation practice, his work draws on a similar collaborative sensibility that parallels mediation.
Highlights of his work include:
in 1984, serving as a court appointed Special Master for the settlement of Agent Orange litigation in the aftermath of the Vietnam War;
in 2001, after the terrorist attack on New York City, Washington, D.C., and an airliner over Pennsylvania, he served as Special Master under the auspices of the U.S. Department of Justice to design and administer the September 11th Victim Compensation Fund;
in 2007, after the mass shooting at Virginia Tech University that resulted in the death of 32 people and injury of 17, he oversaw the design and management of the victims compensation fund;
in 2010, after the catastrophic Oil Spill in the Gulf of Mexico he was retained by BP Oil to design and administer the Oil Spill Compensation Fund;
in 2012, he was retained by Penn State University to design and oversee the settlement of multiple personal injury claims that arose out of allegations of child sexual abuse;
in 2013, he was appointed by the State of Massachusetts and the City of Boston to design and administer the One Boston Fund, charged with compensating those killed and injured by the bombs set during the Boston Marathon;
and most recently, in 2014, he was retained by General Motors after a widespread product safety recall of more than 800,000 vehicles in which 13 people were alleged to have died and 31 others injured.)
Kenneth Feinberg, through his work in the design and administration of compensation plans for those injured in especially difficult or catastrophic circumstances, has become the public face of mediation. Ironically, although he is a practicing mediator by trade, he is the first to make clear that the compensation systems he has devised are not intended to be mediation programs and in their direction neither represents himself or works as a mediator. The confusion, which is certainly understandable on the part of the public, also extends to many professionals, who tend to lump any process less formal than a court proceeding into the mediation category. Even mediation practitioners continue to struggle with what is properly termed mediation. Styles, approaches and purposes vary widely and depending on context and circumstance can alternatively look like a case settlement conference, a therapy session, or spiritual encounter. And, the confusion is exacerbated all the more by the awareness of strains of collaborative thinking and mediative strategies that underlie the design and effective administration of the plans.
When the history of the emergence of the varying alternative dispute resolution modes that has taken place over roughly the last five decades is written, Kenneth Feinberg should be viewed as a significant transitional figure. His compensation plan designs place him at the inflection point where traditional middle men or women have begun for the first time, to consciously, intentionally, and systematically examine how best to manage controversies. His practice and approach draws from the past the classic virtues of third party actors who have from time immemorial brokered everything from peace treaties to trade agreements, and applied those skills to the management of the most difficult issues of the present day. And, while he never formally studied or trained as a mediator, was able to draw his legal and political experience, as so many have done before him, follow his instinct to patch together the techniques and skills necessary to be effective. To be sure, the formal study of conflict management in schools and universities, and the many professional training programs have contributed to practice competency, but Feinberg demonstrates that the classic attributes remain as essential to the future of practice as they have been in the past.
With regard to the design of the compensation plans, Feinberg would be more apt to describe himself as an architect of a structure. In the aftermath of a terrible event, he does not minister separately to each person’s loss, but rather takes the measure of the scene and designs a space where people can express their emotional pain, describe their physical injury, and then do the impossible--- monetize their loss. As any architect will tell you, the design of a large scale private or public space that functions well, even before any mock-up can be made from balsa wood or a blueprint drawn to scale, requires an engagement with the clients, an assessment of their needs, and a clear sense of who will be using the structure. This process requires mediative activity, which will continue after the structure has been built in each of the interior rooms. There will need to be spaces for the many separate discussions individuals must have in order to begin to come to terms with the overwhelming events that have intruded on their lives.
Feinberg has a sober, straightforward demeanor and tends to understate his “alternative compensation systems” as merely modest efforts to deal with people who have suffered catastrophic loss. He makes no pretense of being able to provide closure and uses the words “fairness” and “satisfaction” in such difficult matters sparingly, if at all. His candor, while some perceive it to be a removed coolness that is off-putting, betrays what others have viewed as a refreshing authenticity that makes him all the more effective. Especially in our American culture where there is a prevalent belief that there is a remedy for every wrong and a cure for every discomfort, he appears to appreciate the limits of what can be done after a horrible loss, for a “normal” life to resume. Experienced negotiators and mediators know not to over promise, especially in difficult matters. He offers nothing more or less than a process that allows people to deal with hard issues in a thoughtful, caring and realistic way.
Feinberg makes clear that he did not seek out this kind of reconciliation work and has never thought of it as his calling. Far less dramatically, as a lawyer by training and experience, and a onetime staff aide to Senator Ted Kennedy of Massachusetts, he was simply asked by Judge Jack Weinstein, the Chief Judge of the Federal District Court for the Eastern District of New York, in 1984, to help resolve the then pending Agent Orange case.
This was his first foray into the management of big injury cases. Just weeks before trial was set to begin in this complex litigation where there were multiple claims of injury alleged to have been suffered by Viet Nam War Veterans based on their exposure to the poisonous defoliant herbicide, Agent Orange, he was appointed by as a special-master, charged with the responsibility “to mediate a comprehensive settlement.” The matter was inflamed by political and public policy ramifications and plagued by legal evidentiary problems of causality and proof. It was, as Judge Weinstein recognized, ill suited to resolution in the courts. He knew that years of litigation and appeal were likely prospects, at considerable cost with no sure outcome, exacerbating the suffering and dislocation of the vets, their families, and the larger community. Feinberg recounts his hesitation to accept, knowing that he was without “any background whatsoever in mediation, …had never been a mediator, and had never even taken a course in mediation in law school.” The Judge, however, was undeterred and made clear that “I need somebody I can trust, somebody with the personality and skill to secure a global settlement of the litigation” (Feinberg, K., Who Gets What, 2012, p25).
It is worth noting that the use of special masters appointed by courts to make specific findings of fact in complex matters, was not new back then. Seldom however, had a judge given such broad authority and responsibility to a third party to effectively act in his stead to settle a matter as a mediator---whatever that meant. Three decades ago the role of a mediator was even less clear than it is now. There were few books to read and even fewer formal courses to be had. Mostly it was a “fly by the seat of your pants” learning experience. Although mediators had been employed in other contexts, such as managing labor- management controversies, in community matters in the wake of the civil disorders of the late 1960’s, and beginning to be used in managing family and divorce issues with the advent of divorce reform in the 1970’s in most states, mediation practice was still not a widespread, especially in civil and personal injury matters. Many who practiced mediation in those early years remember the hesitation, and sometimes outright resistance, by many lawyers and judges to mediation. Mediation was often regarded as an inappropriate delegation of judicial responsibility, or an invasion of the province of the court. The lawyers involved had traditionally been relied upon to settle matters, even if it was at the courtroom door the day of trial. Judge Weinstein knew, what many were coming to realize back then; relying on the attorneys to settle cases was often a hit or miss proposition. It depended on their willingness and effectiveness as negotiators and few law schools at that time even taught negotiation, let alone mediation. Judge Weinstein, as Feinberg observed, was a different kind of Judge. As he saw this case becoming a “train-wreck” that threatened continued confusion and suffering, he fearlessly fashioned a creative and pragmatic remedy to step, if not outside, into the shadow of a legal system not prepared to respond to find a workable resolution. Judge Weinstein has remained a model and inspiration for Feinberg over the course of his career, for the kind of thinking and approach that must be applied to resolve complex and difficult matters.
Nonetheless, Feinberg remains a traditionalist. He avidly defends the general efficacy and fairness of the legal system in the resolution of most “garden variety” tort claims and resists any suggestion of displacing that time-honored structure. For him, the Agent Orange case was an exception. The “trauma of a protracted and unpopular war” that had become a deeply divisive political issue, in a matter where questions of legal causality remained unclear, the necessity for a resolution that went beyond the legal system’s capacity appeared clear (Feinberg, K., Who Gets What, 2012, p25).
It is also important to note, that how Feinberg describes what he did as a mediator would likely be subject to considerable scrutiny and criticism by the standards of present day practitioners and theorists. Judge Weinstein was caught between the defendant chemical companies that produced the herbicide but denied any liability and the U.S. Government who claimed immunity, all of whom were arrayed against the Veterans. Feinberg candidly acknowledges that “(Judge) Weinstein’s master plan---- (was to use) mediators as his agents to forge a settlement that would help the Vietnam veterans, who had been criticized and maligned for serving their country--- (and it) had worked” (p29-30). “Backed by Weinstein, we mediators played each side against the other” (p27). He did not play the objective neutral, but it worked and there was a settlement.
Seventeen years later in 2001, however, the outside-the-box thinking frame he had used in the Agent Orange Case prepared him to manage an even more problematic matter when he was appointed by The United States Department of Justice, not as a mediator, but to oversee the September 11th Victim Compensation Fund. In the aftermath the terrorist attack on The New York City’s World Trade Center and the Pentagon in Washington D.C., causing massive casualties and death, he was given the task of allocating monies to the families and survivors of that event. The model used in this catastrophic circumstance, in which public funds were appropriated to compensate private citizens, was effectively unprecedented. In fact, while the pragmatic and humane necessity to immediately respond to the suffering of the many private citizens and their families who were traumatized was clear to most, Feinberg admits to continuing qualms about the program as a matter of policy. He reiterated what he told the New York Times some years ago, that “taxpayers money” should not be used to compensate injured parties for misfortune and for the government to become, in effect, “an insurer of last resort” is (Grimes, William, “Calculating the Incalculable in the Aftermath of Sept.11,” New York Times, June 15, 2005). His only acceptable rationale for participating in a detour around the traditional system was the extremity of the matter which he the cast as a “one-off” event. He remains constantly mindful, however, of the risks of countenancing such departures and the potential risk of subverting the traditional legal system, not to mention the moral and political ramifications and implications of so acting. He is troubled that those injured in circumstances deemed exceptional will be given expedited and more accommodating redress than those injured in comparative, but less publicly prominent situations. Should the victims of a lesser terrorist action be foreclosed from obtaining compensation from the government, and how and where should lines be drawn?
Feinberg, not unlike all of the deal brokers, negotiators and mediators before him, has had to struggle with the morally ambiguous terrain that surrounds the management of every difficult and complex matter. He is compelled to balance the practical necessity of settlement with the potential fallout and future implications of such a deal, some of which can be foreseen, and others unforeseen and unintended, and reach some accommodation or compromise. This is a constantly present occupational hazard to all practitioners who must negotiate and collaborate, which is exacerbated in more difficult matters. Perhaps for that reason he downplays the frequency of such extreme occurrences as aberrations and “studiously avoids teaching” the methodology he has developed for managing them. He believes that because they are such infrequent occurrences “there is little to be gained.” The future he envisions for his work follows the pattern of the past: it is only to be done when absolutely necessary. However, in a world straining to adjust to the havoc caused by climate change and an increasingly volatile geopolitical environment that includes a constant threat of terrorism, his optimism might well be misplaced. And even if the occurrences are remote, they are still likely to occur and others my be able to better prepare for them if they had the benefit of Feinberg’s thinking and process blueprint as a beginning point.
There is little doubt that meditative strategy and process plays a part in Feinberg’s thinking and design approach. He has structured in to his compensation plans the basic working premise and understanding that underlies every collaborative process, regardless of circumstance or context: if there is to be a workable agreement, not everyone can be satisfied, but neither can a participant feel like he or she is being played for a fool. He poignantly came to appreciate that people must feel respected and acknowledged, but at the same time, too much personalization can be problematic. In his book What Life is Worth (2005), he describes his struggle with in managing the September 11th Fund administration distinguishing differentials in compensation between the families of upper income stock brokers who died in the World Trade Center Twin Towers, and those who worked in the restaurants or were the fire fighters or police, who died trying to save people, but earned significantly less. It became abundantly clear that he had to establish criteria for a uniform standard of compensation. Personalizing the process too much allows and encourages people to draw comparisons between their circumstances and those of others, which can often stir perceptions of bias and discontent. Treating people the same, or “equally,” is a blunt standard of fairness that is not necessarily fair; it does, however, minimize challenges and complaints. He has been largely successful. In the compensation programs he has designed, the prospective participant have the right to opt out of the plan, however, only a relative few have done so. His difficult task, although done through a structured process, is much the same as that of any mediator. It must provide some means of acknowledging the deep seated sense of loss and emotional distress of those injured, and within the realistic and sometimes harsh constraints of a reasoned, objectively grounded and pragmatic structure, determine an amount of compensation that is acceptable and considered fair enough by a critical mass of the participants.
Feinberg has been effective for two structural reasons: first, he is a step removed from the claimants. Although he is clearly mindful of their pain and suffering, they are not his clients. His duty and responsibility is to a supervisory court, government agency, or private corporation that has retained him to design and administer a compensation fund. Second, unlike a formal mediator, he effectively controls and has direct access to the funds available for distribution, and can draw upon the authority of his appointment to move with dispatch, make decisions and to distribute them with minimal bureaucratic complication. Despite those advantages, however, for Feinberg to be the successful broker of a workable plan and obtain the buy-in of most of the various participants with different interests, he must come across as authentic, and charismatic enough to gain their trust and confidence, and reasoned and persuasive enough to enlist them in the plan. He cannot compel their compliance, and not unlike mediation practice, his work is done in “the shadow of the law.”
Feinberg looks back on his career, as unplanned as it has been, with a great deal of satisfaction. As deal brokers have done for centuries, he had to rely on his own wit and ingenuity. If Judge Weinstein opened the door for Feinberg, it was his work as an aide to Senator Ted Kennedy the other key element that Feinberg has traded on since: political savvy. From the Senator, Feinberg took careful notes of the politics that surrounds most conflicts and the art of compromise and the recognition that it is not enough to merely be skillful. Not unlike a basketball or football player, while playing your role or position well is important, what sets apart the best are their court or field sense. Like the great ice hockey player, Wayne Gretsky has said, “I don’t skate to the puck, I skate to where the puck is going to be.” It is the same for negotiators. In managing a controversy, the ability to anticipate and size up what is happening outside of the discussion room as well as inside, makes all the difference. A good broker senses not just what people say they want, but what they secretly want but will not or cannot say, or sometimes even hide from himself or herself. Feinberg gained that field sense from Senator Kennedy who was legendary for his ability “reach across the aisle and bridge differences. ” He begins by using reasoned persuasion. His favored approach is to straightforwardly emphasize to participants the advantages of a settlement as compared to the uncertainty, cost, and risk of litigation. But he still understands the realities of bargaining and the need ---in Senator Kennedy’s words---to understand the importance of obtaining “half a loaf in a deal now as the best way to get the other half later,” and “not to let the perfect become the enemy of the good.” For Feinberg, these are more than just words. In dealing with the frustration that accompanies the necessary compromises his difficult work requires, he has internalized and lives by those words.
Some people discover early in their lives they are meant to follow a particular course or passion and their life and career is clearly laid out before them. For others, “the marriage is arranged” by circumstance or necessity. They are asked to do a task and although they complete it well enough, there is no immediate recognition this is to be their career, but it nevertheless, the same kind of work keeps coming. Notwithstanding how unplanned and improbable his career path as a deal broker has been, however, there is little doubt that his work has changed the landscape of not only legal practice but society as well. By his own reckoning, he has had a career that he “never imagined in his wildest dreams.” And with justifiable pride, Feinberg reflects that although the work is “hazardous and difficult” he takes “great satisfaction in his successful implementation” of systems that provide some measure of relief to people in need.Feinberg comes from the time-honored tradition of the classic deal broker. And just as most diplomats, middlemen, and peacemakers throughout history, he had no formal training but does have the right instincts. He learned by the seat of his pants and from watching those around him the basic necessity for constructing workable compromises in difficult matters. What our discussion made clear was the extent to which he has incorporated into his being what have always been and remain the core and essential attributes of such deal brokers in whatever context they might work. Beginning with a commitment to reasoned persuasion, he projects an authenticity that encourages trust, and exhibits a persistence and determination that borders on abstinence to reach agreement. While the present day formal study and training in the strategies, techniques and skills of negotiation and mediation can develop, refine and enhance those core attributes, they are no substitute for them. Feinberg, while a self-described “old-fashioned” deal broker, is also a most worthy model for future practitioners. Skills can be learned; passion and heart cannot.