ONE-ON-ONE WITH KENNETH FEINBERG
Unconventional Responses to Unique Catastrophes:
Tailoring the Law to Meet the Challenges
From Agent Orange, 9/11 to BP
Kenneth R. Feinberg is one of the nation’s leading experts in mediation and alternative dispute resolution. He has administered numerous high-profile compensation programs, having served as Special Master of the 9/11 Victim Compensation Fund, TARP Executive Compensation and the Agent Orange Victim Compensation Program. Mr. Feinberg has been appointed to two presidential-level commissions because of his experience and expertise and has had a distinguished teaching career as an Adjunct Professor of Law at several of the nation’s top law schools. Mr. Feinberg was born in Brockton, Massachusetts, he received a Bachelor of Arts from the University of Massachusetts-Amherst in 1967 and a law degree from the New York University School of Law in 1970. Mr. Feinberg worked for five years as an administrative assistant and chief of staff for U.S. Senator Ted Kennedy and as a prosecutor for the U.S. Attorney General. Before founding his own firm, The Feinberg Group (now the Law Offices of Kenneth Feinberg) in 1993, he was a founding partner at the Washington office of Kaye Scholer LLP.
Feinberg currently serves as Special Master of the U.S. Victims of State-Sponsored Terrorism Fund being administered by the Department of Justice, as well as Fund Administrator for the New York Archdiocese Independent Reconciliation and Compensation Program.
Mr. Feinberg served as the government-appointed administrator of the BP Deepwater Horizon Disaster Victim Compensation Fund. Mr. Feinberg was appointed by the Commonwealth of Massachusetts to administer the One Fund—the victim assistance fund established in the wake of the 2013 Boston Marathon bombings. Mr. Feinberg was also retained by General Motors to assist in their recall response and by Volkswagen to oversee their U.S. compensation of VW diesel owners affected by the Volkswagen emissions scandal.
On February 28, 2018, I was honored with an invitation to participate in a private one-on-one group at the ASU Sandra Day O’Connor Law School, Lodestar Dispute Resolution Center with Mr. Feinberg. Mr. Feinberg would be giving a lecture later in the evening on when & how special compensation programs are established and some of the unique political and philosophical problems created by providing special compensation, but only to certain victims.
I sat there to be edified with techniques, laws and practice procedures in alternative dispute resolution. After all, I was sitting in front of a person from whom many in the ADR community consider a pioneer, a “Master Mediator” as described by Sheryl Gay Stolberg, (NYT June 16, 2010). The question was then posed to Mr. Feinberg, “how did you acquire the cases that made you so famous.” The answer, was simple, he stated, “Luck. Being in the right place at the right time.” (Note: Judge Weinstein and Feinberg have been friends for years and they both clerked for the same judge after law school)
This however, with his years of success has led to reports that Feinberg, pretending to be a neutral, had a quick temper, an inclination to fly off the handle right away, to start shouting at a reporter at the drop of a hat. Other reports claimed he had an acerbic and tempestuous manner that was his core competency. His specialty as a lawyer is technically “Alternative Conflict Resolution” but in fact what he does is use strong-arm tactics, and under the table pressure, to browbeat victims into taking a quick deal that reduces the liability of big corporations, and federal government.
Nonetheless, it is definite that Mr. Feinberg is effective, and effectiveness will always, as with any field or successful person, have it critics and naysayers in plethora. Let’s face the fact, Mr. Feinberg’s expertise has been at the bequest of Presidents and the federal government. His appointments have included serving as Special Master for TARP Executive Compensation following the financial crisis, Administrator of the Gulf Coast Claims Facility following the Deepwater Horizon oil spill, and Special Master of the Federal September 11th Victim Compensation Fund. His experience in the field as a mediator and the ADR community is invaluable. About the case of BP, he took only 18 months to pay 225,000 victims more than $6.2 billion, a whopping record of speed and distribution that put to shame a similar-scale of compensation efforts, such as the post-Katrina Road Home program for homeowners.
In his book, “What is Life Worth?”, Mr. Feinberg states, "In meeting after meeting during the first weeks of the GCCF, I made the ridiculous public pledge that 'the GCCF will pay eligible individual claimants within forty-eight hours and eligible businesses within one week. Talk about a self-inflicted wound!" Feinberg writes. "Underestimating the volume and complexity of the claims, I promised what I could not possibly deliver. As a result, the GCCF was immediately placed on the defensive." He stated, "None of my prior assignments in designing and administering public compensation programs prepared me for the GCCF experience," Feinberg concludes in the chapter on his spill claims work. "The BP oil spill taught me new lessons. Without political consensus and bipartisan support, which I benefited from in my earlier work, it is much more difficult to achieve success and secure public approval.”
He continued this dialogue with the group as he demarcated practices and techniques, we as mediators, could use in our own mediation sessions. He stated that when he was first asked to serve as the Court-Appointed Special Settlement Master in the Agent Orange product liability litigation by U.S. District Judge Jack Weinstein, he didn’t have a clue what he was doing. This process, mediation, was new and there wasn’t any training available at that time. Agent Orange was an herbicide and defoliant chemical, one of the tactical use Rainbow Herbicides. It was widely known for its use by the U.S. military as part of its herbicidal warfare program, Operation Ranch Hand, during the Vietnam War from 1961 to 1971. It is a mixture of equal parts of two herbicides, 2,4,5-T and 2,4-D. In addition to its damaging environmental effects, the chemical has caused major health problems for many individuals who were exposed.
It has been reported that up to four million people in Vietnam were exposed to the defoliant. The government of Vietnam says as many as 3 million people have suffered illnesses because of Agent Orange. The Red Cross of Vietnam estimated that up to 1 million people were disabled or have health problems as a result of the Agent Orange contamination. The chemical was capable of damaging genes, resulting in deformities among the offspring of exposed victims. The U.S. government has documented higher cases of leukemia, Hodgkin's lymphoma, and various kinds of cancer in exposed Vietnam Veterans. Agent Orange also caused enormous environmental damage in Vietnam. Over 3,100,000 hectares of forest were defoliated. Defoliants eroded tree cover and seedling forest stock, making reforestation difficult in numerous areas.
Animal species diversity sharply reduced in contrast with unsprayed areas.
The aftermath of the use of Agent Orange in Vietnam resulted in massive legal consequences. The United Nations ratified United Nations General Assembly Resolution 31/72 and the Environment Modification Convention. Lawsuits filed on behalf of both US and Vietnamese veterans sought compensation for damages. The Agent Orange Product Liability distribution of a $180 million out-of-court settlement, agreed upon by attorneys representing some 200,000 Vietnam vets claiming Agent Orange contamination and attorneys representing the seven companies that made the chemical. The settlement ended an impassioned five-year legal battle for compensation by servicemen exposed to the 11 million gallons of Agent Orange containing a highly toxic dioxin that was sprayed over the jungles of Vietnam from 1965 to 1970. These settlements, as well as others such as Hokie Spirit, Virginia Tech, Aurora, Sandy Hook and Archdiocese, said Feinberg, did not always come as a result of a face-to-face caucus with the individual. He continued by saying, “Many mediations are effective when you do not personally meet with the individual then again some are more effective when you meet personally with the individual. This is trial and error, but I also want to know before going into any mediation, what is the Respondent willing to pay out. I always wanted to know what I had to work with (funds) beforehand. Remember, it’s simply impossible to satisfy everyone.”
One thing is for sure, whether we are mediating multi-billion-dollar cases (Feinberg Rozen were paid $1.25 million a month to dole out BP's money) or the smaller scale versions of landlord/tenant and/or divorce, the techniques, practices and procedures are the same as well as timing. Timing can be critical as we learned from Mr. Feinberg and the Agent Orange Product Liability case. The erudite factors that must be utilized in our practice of mediation within the ADR community other than the basic mediation process are:
Preparation, know how to prepare for a mediation session and be able to present the essential elements of our opening statement.
Identify Issues, be able to identify issues and interests of the parties and set an agenda for the mediation session.
Performance, be able to skillfully conduct a mediation conference with joint and private meetings, allowing the disputing parties uninterrupted time for expressing viewpoints and interactive time to effectively exchange information, arguments, and offers of settlement.
Closing the Session, be able to assist the parties in building and writing an agreement and to properly close the mediation session.
We as mediators, must adhere to the Rules and Ethics of our profession and understand the basic rules of behavior for the parties in a mediation session and our common ethical practices as mediators is, as always paramount. Following these simple practices and procedures is the road to a successful and respectable practice in Alternative Dispute Resolution, and maybe that BP, GM or Volkswagen case is just around the corner.
Below are books written by Kenneth Feinberg, (Feinberg, Kenneth (August 2006). What Is Life Worth?: The Inside Story of the 9/11 Fund and Its Effort to Compensate the Victims of September 11th. New York City and Feinberg, Kenneth (June 2012). Who Gets What: Fair Compensation after Tragedy and Financial Upheaval. New York City).