Mediation: Judge Rules Kenneth Feinberg Is Not Neutral
February 8, 2011
Mediation is a perfect way to resolve conflicts. Generally, anything that can be litigated can be mediated–so goes the saying and there is a lot of truth to it. During a properly set up mediation process, the mediator facilitates communication between all parties and helps the parties to reach a resolution that both find satisfactory. A successful mediation is a win-win situation where both parties are happy with the results.
Following the BP oil spill in the Gulf, the government nominated Kenneth Feinberg as a “mediator” in charge of resolving and distributing the $20 Billions dollars BP has placed into a fund for the victims. Aside from this process being wrong from its inception in that the defendant in essence has decided what is the ceiling amount in damages it will pay and not the courts, the jury and the process; the mediator is charge is also paid by BP. Mr. Feinberg, paid by BP in the tunes of hundreds of thousands of dollars per month, is in charge of the distribution of the funds where the surplus will revert back to BP.
This of course is not what a properly set up mediation process is all about. In a properly set up mediation process, the mediator is neutral–that is he or she is no affiliated with any of the parties involved and is paid in fact by both parties on a 50/50 basis. This ensures that the mediator is not biased.
Further, the mediator is not there to decide the validity of a claim. Kenneth Feinberg has the ability and the authority to deny a claim–a role more akeen to an arbitrator or a judge/jury rather than a mediator.
All in all, all evidence points to the fact that the victims of BP in the Gulf have been forced to accept decisions made by an interested person who pretended to be neutral to the disadvantage of the victims. This entire process is rigged to benefit BP.
Until now… at least from now on, Mr. Feinberg may not continue to pretend he is a neutral and independent service provider.
Today a federal judge ruled that Attorney Kenneth Feinberg, the “mediator” handling the the claims against BP as a result of the Gulf Oi Spill, is not independent of BP and must stop presenting himself as such. In other words, the judge ruled that Feinberg is not acting as a mediator of claims, as initially stated when he assumed his role, but more of a claims adjuster – an agent of BP. The ruling is important for many reasons, in addition to clarifying that what is occurring in the BP oil spill claims process is not mediation.