"A Noble Profession": Kenneth Feinberg at ADR & Law Conference 2013

When you make the decision to focus your legal practice on alternative dispute resolution, everything changes, and the conferences you attend are no exception. No longer do you attend sessions designed to help you gain an edge over “opposing counsel” (many of whom, it should be noted, are hearing the same advice along with you). Instead, you find yourself surrounded with people devoted to the common purpose of helping parties resolve their disputes fairly and reasonably, without litigation. That was the overwhelming tone at MCLE's 5th Annual New England ADR & the Law Conference 2013 this Tuesday.

It was an inspirational and educational conference from start to finish, including excellent panels on negotiating mass torts (read: massive human tragedies, including the 2003 Station nightclub fire in Rhode Island), managing mediator bias (real and perceived), and budding alternative dispute resolution programs in the Massachusetts courts. Here, though, I just want to focus on the keynote presentation by Kenneth Feinberg.

Photograph by Samuel Waltman, licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license.

Photograph by Samuel Waltman, licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license.

About Kenneth Feinberg

If you have heard of the September 11th Victim Compensation Fund, TARP Executive Compensation, the BP Deepwater Horizon Disaster Victim Compensation Fund, the Hokie Spirit Memorial Fund, or One Fund Boston, then you might have also heard of Kenneth Feinberg.  Feinberg administered the distribution of funds in each of those cases, but that really only scratches the surface of his accomplishments. I encourage everyone to check out his Wikipedia page and the webpage for his mediation and ADR practice, Feinberg Rozen, LLP.

Applying the first principles of mediation

The fundamental concept in mediation, what makes it so effective, is the opportunity to be heard.  This first principle is so important, so core to the process, that it must be upheld even if being heard will not change the financial outcome by even a single cent.  In each of the funds Feinberg administered, protocols were developed to determine the compensation a claimant  would receive. Yet, to the extent possible, Feinberg left his door open for claimants to come and speak with him about their experiences, even though nothing they said could change the amounts they were to receive.  For many people, before they could sign for a claim (and thus waive their right to sue), they needed to meet with Feinberg and make sure he understood how deeply they had been affected. While administering the September 11th Victim Compensation Fund, Feinberg’s office was filled with mementos people had brought to him in memory of their losses: trophies, awards, photographs, videos, and more.  To anybody who might do similar work in the future, Feinberg advised, “Brace yourself."

The harder question was not “how much,” but “to whom?”

As hard as it was for Feinberg to welcome the grieving claimants into his office, the real conflict arose when it came time to distribute the money. The value assigned to a particular claim — to a woman who died in the World Trade Center on 9/11, for example — was relatively straightforward under the protocols.  But who would collect that amount?  As Feinberg noted, “Money does funny things to families.”  What if the woman was set to be married to a same-sex partner on September 12th?  And what if the woman’s mother believed that her daughter intended to call off the wedding?  How should the money be distributed?  This is where mediation comes in.  With the help of a network of local mediators, Feinberg was able to resolve claim disputes in nearly every instance, and every case that did not resolve through the claims program ended up resolving short of trial later on.

Remembering President Kennedy

With the conference taking place on November 19th, 2013, just three days shy of the 50th anniversary of the Kennedy assassination, Feinberg took a few moments to eloquently reflect on Kennedy’s legacy and how the media are “missing the point.” Kennedy’s enduring message was not about foreign policy or race relations, he said, but that everyone can make a difference, and “the public interest matters.” What we do as mediators and other alternative dispute resolution professionals, he said, validates that message. Hence the bold statement that began his presentation:

“We are a noble profession.”