Kenneth Feinberg: The 9/11 mediator who listens


When massive tragedy strikes in the United States, when half a dozen or a score or thousands of people are killed in a single incident, when disaster hits a region, Kenneth Feinberg often gets a call.

The Washington attorney is perhaps best known for his work as the administrator of the fund that paid restitution to the families of 9/11 victims and the one that compensated individuals and businesses harmed by the BP Oil spill in 2010, but his phone rings on all sorts of unhappy occasions, most recently in the wake of the shooting at a Wisconsin Sikh temple in August.

They call Feinberg because he has made a career in mediation, dealing with particularly complicated situations involving death, environmental disaster and financial upheaval. They call him because he’s been called “Solomonic” on more than a few occasions — a label that Feinberg rejects — and because he has demonstrated an ability to exercise and implement good, fair judgments.

But as Jews around the world, Feinberg included, prepare for another season of holidays centered on the theme of judgment, it’s notable that a major element of Feinberg’s process is something deceptively simple: He listens.

“When you have face-to-face meetings, you give victims an opportunity to vent, and they welcome that opportunity to vent,” Feinberg said, speaking to the Journal by phone from his Washington, D.C., office in August. “I find that these one-on-one meetings are very important in convincing claimants in grief about the bona fides of the program that you’re trying to run.”

Feinberg was referring to the more than 900 meetings he had in the aftermath of 9/11 with families of victims, a process he repeated in administering a much smaller fund compensating the victims injured and families of victims killed in the 2007 shooting on the campus of Virginia Tech. In both cases, Feinberg remembered that most of the people who chose to meet with him did not talk about dollars and cents, but came to tell stories, sometimes with photo albums and mementos in hand, “in order to validate — on the record, in writing, face-to-face — the memory, the good works of a lost loved one.”

In compensating individuals in the wake of tragedy, Feinberg has found the meetings to be essential, because they show that somebody is listening.

“There is an individual — not a bureaucratic device, but there is an actual human being listening to what I have to say about my dead wife or husband or brother or sister, son or daughter,” he said.

Individual meetings aren’t always possible, particularly when dealing with large numbers of claimants who have all suffered different kinds of damages, as Feinberg did when he administered the Gulf Coast Claims Facility, which paid out more than $6.14 billion from BP to more than 500,000 claimants from all 50 states and 38 foreign countries.

But in many instances, direct listening in face-to-face meetings can have a strategic purpose, as well. In his role as the U.S. Treasury Department’s “pay czar,” tasked with setting the compensation of 175 high-ranking executives at the largest of the financial firms bailed out by the American taxpayers in 2009, Feinberg heard petitions from CEOs, CFOs and their lawyers.

That role was a distinct reversal for Feinberg. “There I was fixing the compensation of alleged, not victims, but perpetrators, who had caused the 2009 financial meltdown,” Feinberg said.

Which is why, as he wrote in his book “Who Gets What: Fair Compensation After Tragedy and Financial Upheaval,” published by Public Affairs earlier this year, one of the ground rules Feinberg set for the meetings with the executives of bailed-out companies was that they had to take place in Washington, D.C.

The Tribute in Light is illuminated marking the 11th anniversary of the 9/11 attacks on the World Trade Center in New York, on Sept. 10. Photo by REUTERS/Gary Hershorn

“As an experienced mediator, I knew the importance of conducting meetings in the most effective venue,” Feinberg wrote. The “lavish and imposing” Treasury Building fit his aim perfectly, making immediately clear to the corporate officials “that they were up against a formidable negotiating partner — the federal government.”

In their own ways, the meetings Feinberg had with the companies’ officials didn’t focus on money — or at least not the immediate exchange value of money.

As the “special master” of an office in the Treasury Department overseeing executive compensation, Feinberg and his staff were dictating to these seven companies the exact amount they could pay their top employees. The goal was to balance the interests of the executives and the firms, who wanted to be able to compete on hiring with other corporations, against those of the taxpayers and congress, who had loaned these companies billions of dollars and wanted that money repaid as quickly as possible and in full but who also wouldn’t tolerate excessively lavish compensation.

In the meetings with executives, Feinberg said that the conversations were never about money or material gain — “I need money to buy another summer home, I need money to send my kinds to private school” — but instead were about compensation as a “litmus test of self-worth or integrity or contribution to society.”

“ ‘Look, Mr. Feinberg,’ ” Feinberg said, recalling the executives’ emotional pleas, “ ‘what you’re paying me demeans my value to society, it demeans my value to the community, to my family. You are getting very personal; you are reducing my compensation, thereby diminishing my overall self worth.’ ”

Feinberg’s ultimate decisions were, in his words, “very cold and calculating.”

“I looked at statistics governing compensation — what is a CFO worth, or a CEO worth — studied the competitive pay scale of others similarly situated, looked at what incentives should be incorporated into a compensation package, and calculated the actual awards,” he said.

In administering the September 11th Victim Compensation Fund — which Feinberg said is still the most challenging assignment he’s ever faced — Feinberg’s meetings were very different. They took place all over the country, often in the offices of law firms. And while the meetings were essential to convincing some of the families of victims (particularly those of the wealthier victims) to join the fund and not litigate their claims in court, it’s clear that the emotional tenor made them difficult for Feinberg.

“Unless you have a heart of stone, you can’t remain dispassionate,” he said. “You try and … limit the impact of that emotion, but you cannot help but be affected by the death and tragedy involved.”

And, Feinberg learned, people react differently — unpredictably, even — to tragedy. The group meetings he held for victims’ families in California, Feinberg said, were “very touchy-feely,” particularly in contrast to the meetings he’d held in New York and Virginia.

“Everybody wanted to hold hands and pray collectively and to reinforce each other,” Feinberg recalled.

And if half of the families of 9/11 victims decided that the tragedy had “ended, once and for all, any belief they may have had in God or religion or an afterlife,” the other half, Feinberg said, told him that “the tragedies reinforced their religion and their beliefs.”

“Do not attempt to predict human nature,” Feinberg said.

Feinberg doesn’t keep in touch with the families of victims, nor does he have a particular way of commemorating the anniversary of 9/11. This year, on the 11th anniversary of the attacks, Feinberg was scheduled to speak at a conference organized by an insurance group in Canada.

On Rosh Hashanah, Feinberg said, he would be thinking about the future, not the past.

“I think about the year to come, in hopes that I and my family can enjoy health and happiness,” Feinberg said. “And on Yom Kippur, I sort of muse and reflect on the year gone by and what I could’ve done differently, or better.”

Feinberg described himself as “a believer,” so it seemed fair to ask him whether he feels that there is a listener to his prayers.

“I don’t put it in those terms, is someone listening,” Feinberg replied. “I’m hoping that — by raising the level of thought to a conscious level, so that I’m actually reflecting on the past and the future — I’m listening. And I think that’s what’s important.”

U.S. at Center Stage in Syria Talks


They were called “Syrian-Israeli” talks, but this week’s second round of negotiations between the two countries was very much an American affair — in a storybook small town chosen by the White House, with President Clinton playing host and mediator.

So it was no surprise that when the talks were snagged over a disagreements over what to talk about, it was Clinton who held the negotiators’ hands, cajoled, nudged and pleaded.

Administration officials have concluded that only an unusually active American role can achieve closure in talks in which the two sides are close on the details of an agreement — but psychologically far apart.

That’s in keeping with the views of Prime Minister Ehud Barak, who headed the big Israeli delegation that arrived at the Clarion Hotel and Conference Center in bucolic Shepherdstown, W.Va. on Sunday for talks held under an unusual shroud of secrecy.

The expanded U.S. role has risks, many observers say, especially because it could lead to expectations that Washington can’t back up with action.

And to critics, it merely reflects a peace process in which the Syrians have little interest in making peace with Israel, and all the interest in the world in cultivating ties with Washington.

“It suggests that even if an agreement is reached, it would be grudging,” said Daniel Pipes, a Mideast analyst who has criticized the current peace process. “The administration is giving Barak what he wants. And Barak is reflecting the Israeli body politic, which simply wants out, and is willing to give the Syrians anything they want.”

The setting for this week’s talks — a sequestered conference center ten miles from the nearest Interstate highway — was meant to force Israeli and Syrian negotiators into closer contact.

But the remote setting did not obviate the need for an overarching U.S. presence. That role quickly boiled to the surface on Tuesday, when the Syrians wanted to start with the question of borders — and the Israelis insisted on beginning with security.

That forced Clinton and his team of negotiators to center stage. After another round of presidential intervention, the “procedural hurdle” was overcome, according to a State Department spokesman.

But nobody expected that would be the last 911 call to the White House.

“We are still at least a dozen crises away from an agreement,” said Thomas Smerling, Washington director for the Israel Policy Forum, a pro-peace process group. “One of America’s jobs is to strike a difficult balance between stepping aside when things are going well — and stepping in when there are logjams.”

Also, he said, Assad’s driving desire to improve relations with Washington requires a more active U.S. role.

“Assad won’t even let his negotiators into the room with the Israelis without the Americans present at every step,” he said.

Israeli officials concede that the reclusive Syrian president has his sights set on Washington, not Jerusalem, but say it doesn’t make any difference as long as he is willing to sign a detailed agreement that includes what Barak deems sufficient security guarantees.

Joel Singer, an Israeli lawyer working in Washington and a veteran of earlier Israeli-Syrian negotiations, said President Bill Clinton’s heavy investment in this week’s talks — and Barak’s willingness to come back for Round Two, despite the fact that he was negotiating with Syria’s foreign minister, not President Assad — shows how close the two parties are to an agreement.

Both sides want close U.S. involvement, he said, because “at the end of the day, the two parties will also turn their faces and maybe their hands to the United States to contribute its own share to the success of the negotiations — beyond their good advice.”

Administration officials deny they have made any specific commitments, but most observers agree that at least the implication that U.S. money, equipment and possibly peace monitoring forces will follow an agreement could be critical in getting the two sides over the last few hurdles.