Q: Where did you grow up and what childhood events shaped you?
A: I grew up in Brockton, Massachusetts and graduated from Brockton High School. I attended the state school, University of Massachusetts, and then attended New York University School of Law in New York City. It wasn't until UMASS that I really became a good student and developed some ambition. I had a mediocre high school academic record. It was at UMASS that I became very interested in American history and graduated with honors. I decided to attend law school rather than drama school. (I had appeared in a number of theatrical productions in both high school and college.)
Q: Why did you enter the legal profession?
A: I decided to go to law school at the suggestion of my father. When I told him that I was thinking of a career on the stage, he warned me that most actors "spend more time as waiters and bus boys waiting for a big break than on the stage." He suggested I put my dramatic talents to work in the courtroom and become a successful trial lawyer. Wise advice. This is why I attended law school.
Q: What was life like after law school? Did you focus on any particular area of
law?
A: When I graduated from NYU Law School in 1970, I was determined to avoid the boredom of private law firm practice. Enthusiastic and idealistic, I first secured a plum judicial clerkship with the Chief Judge of New York, Stanley H. Fuld. From there, I immediately became an Assistant U.S. Attorney in Manhattan and spent the next three years as a prosecutor involved in various criminal matters, such as securities fraud, political corruption, bank robbery, tax evasion, and drug trafficking.
Still bitten by the public interest bug, I then spent five years in Washington first as Special Counsel to Senator Kennedy on the Senate Judiciary Committee and then two years as his Chief of Staff. Finally, in 1980, after ten years in the public sector, I decided it was time to secure my financial future for me, my wife and three children, by opening the Washington office of the New York firm of Kaye Scholer Fierman Hays & Handler.
There it is in a nutshell. I did not begin my career as a mediator until 1984 when, while at Kaye Scholer, I was appointed by the court in the Agent Orange case involving Vietnam veterans to be the mediator in an attempt to settle the dispute. As they say, the rest is history.
Q: When you were chosen mediator of Agent Orange, from where did your
mediation skills come? Any formal training?
A: I had absolutely no formal mediation training before acting as the Special Master/Mediator in the Agent Orange case. Of course, I knew Judge Weinstein, since we had both acted as law clerks for Chief Judge Stanley H. Fuld of the New York State Court of Appeals thirty years apart. So we knew each other as fellow law clerks. Also, Judge Weinstein knew I had been working for Senator Kennedy in Washington and felt that my political contacts in Washington would prove useful in the Agent Orange negotiations involving the US government and the Veterans Administration.
Q: What are the skills required for a good mediator?
A: A first-rate mediator must be competent, flexible and determined. Not only must the mediator master the issues in dispute, but he should also be prepared to engage all of the participants in an intense negotiation which can last all day and night. Flexibility and creativity also are important in helping the parties work out a solution to their dispute.
Q: Where did your legal career take you after Agent Orange?
A: After Agent Orange, my professional career took a sharp turn and I became a full-time mediator and arbitrator. I stayed at Kaye Scholer for another eight years focusing exclusively on mediation and arbitration. In 1992 I opened The Feinberg Group in Washington and New York specializing exclusively in alternative dispute resolution. I've been doing this ever since, including my thirty-three month stint as the Special Master of the September 11th Victim Compensation Fund.
Q: You mentioned the September 11th Victim Compensation Fund. Can you explain
what it was and how it came about?
A: The 9/11 Victim Compensation Fund was enacted by Congress eleven days after the 9/11 tragedy. It established a voluntary alternative administrative compensation scheme to lawsuits. Any family who lost a loved one on 9/11 or was physically injured as a result of 9/11 could decide to enter the Fund. In so doing, they waived their right to litigate against the airlines, the World Trade Center, the Port Authority, etc. Ninety-seven per cent of eligible claimants entered the Fund; less than eighty individuals decided to sue. Congress created the program in order to discourage lawsuits which would have threatened the financial viability of the airlines.
Q: You offered to be special master for no pay. Why so?
A: I believed it would be inappropriate to receive compensation based upon the 9/11 tragedy. Millions of Americans were making voluntary financial contributions to 9/11 charities, totaling $2.7 billion. The least I could do was to make a contribution by working pro bono. Also, if I ever did receive compensation, 9/11 families would have been highly critical, arguing that I was making "blood money" off of the dead. It just didn't seem the right thing to do.
Q: You developed the regulations governing the Fund. Can you explain the
process for doing that?
A: First I developed interim regulations and traveled around the country meeting with 9/11 families and victims to discuss how the draft regulations should be improved. Then, we issued final regulations based on the input I had received. The result - the 9/11 families had a vested interest in the final regulations which helped provide the regulations a credibility they would otherwise not have had.
Q: For those families and individuals who were eligible to opt into the fund, what kind of information were they given beforehand in order for them to give a reasoned decision as to whether to opt in or to sue the airlines or others?
A: We made a concerted outreach publicity effort. Not only were the Rules and Regulations made available on the internet, but I also spent countless hours traveling around the country explaining the Program to all eligible claimants. In addition, each and every claimant was afforded an opportunity to meet with me or my designee and get a fairly accurate "guesstimate" of what the individual award would be before electing whether to opt into the Program or not.
We also published "presumptive award charts" that anybody could examine to learn what their award would likely be. In sum, we took great pains to make sure that all eligible claimants were fully informed of their rights and likely awards under the Fund before electing to participate. That this approach worked extremely well, is evidenced by the ninety-seven percent sign-up rate.
During the thirty-three months that I acted as Special Master under the Program, the families gradually came to recognize the wisdom and value of the Fund. By the time of the statutory deadline for filing, December 22, 2003, virtually everybody signed up. Today, there are less than eighty lawsuits pending in court against the airlines and the World Trade Center.
Q: What kind of information was submitted to you and how then were you able to use that information to determine an award?
A: There was a thirty-three page claim form that had to be submitted accompanied by appropriate economic information about the victim, such as tax returns, 401(k) information, bonuses and commissions, workers' compensation payments, etc.. By statute, I was required to calculate "economic loss" suffered by the victim. With the information provided in the claim form, and the accompanying documentation, I calculated over five thousand awards.
Q: I have read that the average award for those who died was $2.1 million. Were there families who felt their awards were unjust? If so, did they have recourse to argue/appeal the decision to the Fund?
A: Once I rendered an award it was final. The statute creating the Fund expressly prohibited any appeal from my award to the courts. However, I did permit an administrative appeal to me. Once an award was issued by the Fund, the Rules permitted any disgruntled claimant to appeal to me directly and ask that I review the award again and, if requested, give the claimant an opportunity to meet with me to be heard.
I cannot say whether families who received an award considered it "unjust." I'm not even sure what that word means in the context of the 9/11 tragedy. But I do know that a ninety-seven percent participation rate, coupled with general praise by the families and public alike, tells me that, overall, the Program was fair.
Q: The families were carrying pain unfathomable to someone, like me, who did not experience it. How were you able to handle that pain?
A: It was not easy to handle the pain and emotional distress. Family and friends helped. Attending many symphony concerts and opera performances permitted me some respite. Finally, I was lucky in enjoying almost universal bipartisan political support in the Congress, Administration and the press. This latter point proved critical. I could focus on the 9/11 families knowing that everybody in the public arena was rooting for me to succeed.
Q: What do you think 9-11 has taught us?
A: The 9/11 tragedy has taught us to be more fatalistic; don't plan too far ahead since life has a way of throwing curve balls at all of us. Also, the 9/11 event demonstrated the compassion and generosity of the American people, a couple of the most important characteristics of our Nation. Seven billion dollars spent on the Program was a type of "vengeful philanthropy" in which the American people came together as one to demonstrate their unanimity and cohesiveness.
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