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 that absolute dollars matter, but relative dollars seem to matter even more. It seems that disaster victims measure justice by comparing their proffered awards to those offered to others affected by the disaster. 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!