Mediating Tragedy: Managing the Boston Victim’s Compensation Fund

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In mid-May, about a month after the Boston Marathon bombings of April 15, lawyer and mediator Kenneth Feinberg stood in an auditorium at the Boston Public Library to address families who had been directly impacted by the tragedy. Feinberg was in charge of administering One Fund Boston, a fund created to distribute donations to the victims.

His message was sobering. The fund had about $40 million in contributions and pledges to disburse but, said Feinberg, “If you had a billion dollars you could not have enough money to deal with all the problems that ought to be addressed by these attacks,” as reported by John Schwartz in the New York Times.

Feinberg would have tough choices to make. Who should be compensated for their pain and suffering? The families of those who had been killed or been grievously wounded would be first in line. But what about those burdened by medical bills for minor injuries, or those who had experienced emotional trauma?

While asserting that these latter groups were worthy of compensation, Feinberg told his audience that it was questionable whether they would receive payments from the victim relief fund.

Feinberg is accustomed to dealing with such difficult questions.

In the past decade, he has been the point person for victims’ compensation in the wake of national tragedies. He administered the victim compensation funds for the September 11 attacks, the 2007 killings at Virginia Tech, the 2010 Gulf of Mexico oil spill, and the 2012 mass shootings in Aurora, Colorado, and Newtown, Connecticut.

His experience mediating claims from victims dates back to 1984, when he headed a lawsuit settlement fund for Vietnam veterans damaged by the herbicide Agent Orange.

On June 5, the New York Times reported that as the June 15 deadline for applying for compensation from the Boston Marathon fund approached, only about 20% of the expected applicants had turned in their paperwork.

Feinberg wasn’t concerned.

“People procrastinate,” he said.

He expected a surge of applications leading up to the deadline. In the days that followed the deadline, he planned to meet privately with victims and their families, determine the amount owed to each person, and mail out checks by June 30.

“If the program works right, after June 30, I disappear,” Feinberg said.

Feinberg, who has administered recent funds free of charge, often ends up as a lightening rod for the anger and frustration of tragedy victims and their families. Yet, the former aide to Senator Edward M. Kennedy continues to accept these jobs out of a sense of service.

It is no surprise that those affected by tragedies often have different views of what would constitute a fair settlement. Psychological research has found that our fairness perceptions are biased in favor of our self interest. In dispute resolution contexts, this means that mediators often face the daunting task of helping negotiators reconcile their alternate viewpoints.

When you are mediating a dispute or embroiled in one yourself, how can you reconcile differing views of what constitutes a fair agreement?

First, frame the problem as one to be resolved jointly, in a spirit of cooperation.

Second, reference objective norms and standards that all parties can view as authoritative and impartial.

Third, look for different preferences across issues that could lead to mutually beneficial tradeoffs.


Download the FREE special report from the Program on Negotiation at Harvard Law School, Mediation Secrets for Better Business Negotiations: Top Techniques from Mediation Training Experts, and you will discover mediation techniques for selecting the right mediator, understand the mediation process and learn how to engage the mediator to ensure a good outcome.


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