Kenneth Feinberg, the U.S. Treasury Department's special master for compensation, listens during a panel discussion at the National Association of Corporate Directors' Corporate Governance Conference in Washington, D.C., U.S., on Tuesday, Oct. 20, 2009. Feinberg said he's made progress in negotiating with seven U.S. companies on their executive pay packages. Photographer: Joshua Roberts/Bloomberg *** Local Caption *** Kenneth Feinberg

Ken Feinberg (And Me!) On How To Settle A Dispute

July 31, 2012

     Ken Feinberg is probably America\’s most well-known neutral – an attorney, mediator and special master in administering mega-settlements such as those formed to compensate the victims of the 9/11 attacks, the Virginia Tech massacre and the BP Gulf Coast oil spill. Although some might say its not difficult to make everyone happy when you have virtually unlimited funds to disburse, not everyone is happy with the outcome of his work, and that\’s probably how it should be.

     Having read about his work and heard Mr. Feinberg speak in person, he impresses me as someone who deserves the recognition he\’s achieved. That\’s why I was anxious to learn what he had to say when asked about his “priority list” for how to settle a dispute. Appearing in the 7/29/12 NY Times one page magazine (hat tip to the ADR Prof Blog), Mr. Feinberg told Spencer Bailey

In all the negotiations I do, there\’s a priority list: One, know the facts. Two, be dogged. Three, keep an open mind. Next, be creative in getting to “yes.” Finally, a very important basic proposition: Put yourself in the other person\’s shoes.

     Amazing, I thought to myself. These are exactly the priorities I would have listed in answer to the same question. What does that tell me? It probably says that I\’ve had some great mediation instructors, and enough experience to have learned what works and what doesn\’t.

     It is quite another matter to have the ability to carry out the priorities Mr. Feinberg identifies. That\’s where the work really begins. Harder still is convincing parties to mediation (and their counsel) that you know the right priorities and have the ability to make mediation worth their effort. Ken Feinberg has their trust and confidence when he walks in the room. The rest of us work to earn it every chance we get.

[Image: Ken Feinberg, NY Daily News photo, 2010]