I’ve written before about Kenneth Feinberg and and his work involving the BP Gulf oil spill. In today’s New York Times, an article by John Schwartz, “Comments By Overseer of BP Fund Irk Lawyers,” talks about a lawsuit filed by plaintiffs’ attorneys over statements Feinberg has made that encourage claimants to apply for compensation through the fund instead of filing suit.
I have been watching the description of Feinberg and his work over the years and I am pleased to see that the word “mediator” is being used less frequently. Few would question (well, obviously plaintiffs’ attorneys do) the value of his work with regard to various mass tort situations. But it’s inaccurate to call it “mediation”. Administration of the BP fund is a more accurate description.
Today’s article mentions that the Department of Justice has urged Feinberg to process claims faster and to provide more transparency. Mediation does provide faster resolution than many other forms of dispute resolution. But confidentially is a hallmark, not public transparency. The article goes on to say that the federal government has not questioned Feinberg’s independence. If we equate independence with impartiality in this context, that’s one characteristic that this “administrator” and every competent “mediator” share.