Kenneth Feinberg has been named as the independent administrator of the $20 billion fund BP has set up to compensate victims of the Gulf oil spill. After years in the thick of thorny, difficult issues, he was appointed as the special master of the federal September 11th Victim Compensation Fund and later worked as a monitor of executive pay at companies that received government bailouts.
Throughout these assignments, he is often referred to as a “mediator.” Yet he has been called upon in these settings to make “rulings” and this time around he is empowered to name his own three-judge appeals panel. These tasks sound more like those of an arbitrator, the one-in-a-million one who can name his own appellate court.
On the other hand, in the September 11 cases, he reportedly listened with great patience as victims and their survivors described their pain, often in ways exceeding what could be strictly “relevant” in an arbitration of the case. And he is expected, in the Gulf oil spill matters, to use his formidable powers as a listener and persuader to convince victims that it may be in their best interests to settle their claim rather than pursue litigation.
Mediator? Arbitrator? I’d say hybrid.