How to be a good mediator


(istocktwp)
November 28, 2012

Kenneth R. Feinberg is an attorney who has mediated some of the nation’s most highly charged disputes. He oversaw the $20 billion Deepwater Horizon Oil Spill Trust and became fund administrator for the Hokie Spirit Fund following the Virginia Tech shootings. Feinberg also served as the special master of the federal September 11th Victim Compensation Fund and wrote about that experience in his book, What is Life Worth? Feinberg spoke with Tom Fox, who writes the Washington Post’s Federal Coach blog and is the vice president for leadership and innovation at the Partnership for Public Service. Fox also heads up the Partnership’s Center for Government Leadership.

What are the leadership qualities that make for a successful mediator?

The first is competence. Obviously you have to have the ability to master the facts, the law and to evaluate the case. You also need doggedness, flexibility and creativity. I often say, “There’s always more than one way to get to ‘yes.’” I’m always looking for a different way to get the parties to recognize that compromise can be reached. In my cases, I’m a fiduciary, not an adversary. I use basic human understanding rather than lawyer combativeness. People say to me, “Is your legal background helpful in what you do?” I tell them that it’s about 30 percent helpful. A law degree? Nice. A divinity degree? Now that would be helpful.

What is the role of communication when navigating tragedies?

Communication is critical. Nothing helps me in what I do more than transparency and open communication. In the BP case, I went down to the Gulf of Mexico probably two or three dozen times to confront angry fishermen and angry hotel operators who said, “This oil killed my business. Who are you to tell me that I need to document my claim? Why don’t you just cut me a check right here and now?” What really helps policy implementation is confronting people who are the recipients of your work. Demonstrate to them that you care enough to show your face and welcome their criticism. Be clear with what you can and can’t do. When people see that you’re real, they’ll give you grudging respect.

Your job requires resilience. What advice would you give federal leaders who are trying to lead through crises?

I have an expectation when I get into one of these tragedies that people are going to scream. It’s human nature. They’re innocent victims, whether it’s an oil spill, terrorist attack or tornado, it doesn’t matter. They had nothing to do with it. You go in with resilience that’s grounded in expectation. That’s first. Second, leave politics behind. Most of these tragedies share similarities to President Obama and Governor Christie’s coming together over Sandy. That is, most of these tragedies are where the American people and their elected representatives come together and avoid the “gotcha” moments.

Are there tips or approaches you’ve developed that allow you to take criticism?

First of all, you have to have mentors. It’s nice to know that when you’re out there without a life preserver, there are people you can call who can give you good advice on how to deal with the inevitable criticism. Also, you have to take some daily time off. During the 9/11 fund, when I was holding nine or ten hearings a day, I would take a break in the afternoon for an hour to go outside, walk around the block, buy an ice cream or sit on a park bench. My other outlet was classical music. After dealing with tragedy all day, I would listen to the heights of civilization. Finally, I’m fortunate to have a loving and supportive family—my wife in particular—who reinforce my resolve. 

What advice would you give to federal leaders in a time when government is often criticized?

Government is not the problem. Government can be the solution. In my entire professional career, I’ve seen how government can help people. Government service is in the public interest. Take pride in what you do. No matter how difficult some of my assignments, I take great pride in the end results and in the accomplishments. And don’t get caught up in the politics of the moment. Think in terms of public policy, not in terms of politics.

Who are your leadership role models?

Senator Ted Kennedy was my mentor, my friend and the guiding force of my career. If all politics is local, as Tip O’Neill would say, Senator Kennedy would say that all politics is personal. He would bend over backwards to attend weddings and funerals with his fellow senators. Senator Kennedy was constantly bridging differences in an effort get a public-policy result. Justice Stephen Breyer is another one of my mentors and heroes. Even when he’s in disagreement in a polarized Supreme Court, Justice Breyer works with his fellow justices. His optimism can bridge differences. He’s very self-effacing and self-critical, and willing to share the credit.

Read more:

Great leadership books in 2012

Talking leadership with the Kennedy Space Center’s director

Advice for appointees in the second term

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