Full Transcript for The Neutral

incredibly compelling reason to dispute the report or the integrity of an umpire. Otherwise you just lose control. Anarchy. That night in the bar, that was when Rob had realized that he was losing control, that in this amateur baseball league it was anarchy. I had just covered two days after the fact that the head coach actually did not serve his suspension. So yes, I mean I was apoplectic because you what am I supposed to do? Now? So what did you do to him? I suspended the owner for three games and levied a relatively small fine. And how did he respond to that? Not? Well, no, not well at all. The owner had screamed at him, accused him of somehow being on the take from another team's owner. But Rob was just doing his job enforcing the rules, which sounds simple, right, I mean, Solomon did it. But it turns out there's a great deal of ambiguity in the rules. For example, there is a rule against prolonging an argument after an injection, but there's no definition of prolonging. And now I have to go read all these things and watch video and try to make some sort of reasonable determination, and almost invariably neither side is happy ultimately with my decision. What kind of person would enjoy being in the middle, Well, my it's a good question. I keep getting this sneaking suspicion that there are at least a few people in the league who actually enjoy conflict, who thrive on it. I don't know if that's true. Maybe they can't help themselves, and maybe the conflict makes them as miserable as it makes me. I don't know, And I've actually tried to reason with people, these people who seem to enjoy it, because there's a part of me the things they can't be having fun yelling at you, can they of course they can. People love to scream it refs. They do it all the time. And the same people who love to scream it refs also just sort of a zoom. The ref's job is to sit there and take it. I told Rob all this, but it didn't seem to make him any happier. So I asked him was there anything he liked about his new job? Oh? No, no, why not? How at the end of the day, how do you feel good knowing that someone is upset with you and might be questioning your integrity. Rob had clearly never been a ref, and he was learning that he wasn't cut out for it. I probably couldn't be an umpire because my first reaction would probably be to start fighting. So you'd just be out there. You'd be out there throwing sledgehammer punches at the people who came up to argue with you. Well, I wouldn't be good at throwing punches, but yes, I would be throwing punches. The first time someone got inchest from my face and started screaming profanities at me, I would lose it. I mean, I have road rage issues, Not that I've ever done anything, but but I have that impulse so they need to find a different kind of person to do this job. Well, I don't want to fire myself, but I would recommend someone else. Yeah. Sure, I've watched Rob work for years on a book and overcome all sorts of obstacles. But just

a few months into his career as a referee, he's already looking to quit hand the job to someone else. But to whom I mean that generally, not just in baseball, In all the places where disputes need resolving, the job obviously needs doing, maybe more than ever, But what sort of person can do it? Back in nineteen seventy nine, a huge number of Vietnam vets filed a lawsuit against Monsanto and Dow Chemical and other companies that had manufactured a herbicide called Agent Orange. Millions of gallons of the stuff had been dumped under the Vietnamese jungles to kill the plant cover used by the Vietcong. Thousands of vets exposed to agent Orange believed it was responsible for their various health problems. They didn't have much evidence, but the companies wanted to settle just to end the whole thing. That effort kicked around the courts for five years, but no one could find a solution that would satisfy everyone. Then the judge decided to see if he could find a solution outside the American legal system, to appoint an outside mediator, special master the courts called it. And I just got a telephone call out of the clear blue from a federal judge in Brooklyn, New York. Did he explain to you why he thought you'd be good at that job? Yes, he said, You've got the personality for it. The young lawyer's name was and Is ken Feinberg. A case that went unresolved for half a decade, he settled in six weeks. A legend was born. I changed my life. It changed my professional life. You see. Once I got AIGs in Orange resolved and it was on the front page of every newspaper in the United States, I started getting a flood of calls. Was there any any experience in your life before this that was like this where you could say, all, I've been in this kind of situation before. No. I had been in high school and college. I had been an actor on the stage. I had thought that I might end up on Broadway. When I went to law school in nineteen seventy there was no course in mediation or arbitration. There's nothing like that. But there was this role that needed to be played in American life. It just hadn't been written yet. Feinberg created it by sheer force of personality. He wound up running the nine to eleven Victims Compensation Fund and met personally with the families of the three thousand people who were killed. He ran the fund to compensate victims of the BP oil spill. After the two thousand and eight financial crisis, the United States Congress gave Ken Feinberg sole authority to determine the pay of the CEOs of the banks that had been bailed out by government money. And that's just the start. The Paul snight Club in Orlando, Florida, when the terrorists attack, they raised and asked me to distribute thirty million. The harvest, Las Vegas shootings from the Mandalay Hotel. I killed fifty nine people. They raised thirty million. Distribute that money Sandy Hook. They asked me to go up to Sandy Hook and decide how should we distribute the money. The Pittsburgh Tree of Life Synagogue shootings the next day, the Federation of Jewish Philanthropies in Pittsburgh, call, how do we distribute this money? It is astounding. One hundred thousand people after those Boston Marathon bombings sent in money unsolicited, you know, and Mayhem Nino and Governor Patrick said, ken, you're from Massachusetts, you grew up here. We want you to design and administer a compensation program. Four dead, two hundred and forty runners are observers at the finish line, injured, sixteen single amputees, two double amputees. Sixty one million distribute the money. The mass shooting in a movie theater in Aurora, Colorado. The thousands of disputes after Hurricane Katrina between insurance companies and homeowners who are covered for wind but not flood damage. And they retained me to set up a mediation program. Any whole owner wants to participate, voluntarily, Come on in. Feinberg will be the neutral. The neutral, This magical extra legal character, this gifted referee who drops into a situation where people are traumatized, a situation that also might easily become ugly and public, and he resolves it quietly, privately, and hardly anyone says anything about it, or even knows who he is, or just how much power he's wielded. That's why victims Advocate John Fia wants everyone who is eligible to sign up. We have lost forty two people this year alone to nine eleven lady chancers. This will provide money to victims families. In all of these programs, you have some discretion, but you have to exercise it wisely, because the public and the victims are all circling. How you strike the balance between paying people enough for their loss example Pete nine to eleven and not paying them too much. So you couldn't so in dolling out the money, you couldn't actually reflect just pure expected earnings. You couldn't. You couldn't. The law wisely said, and finebergs shall consider expected earnings. And then there's another clause that says, and he will see to it that justice is done well. That gave me the opening to bring down the top and bring up the bottom so that the gap between the stockbroker who died and the bus boy who died was not to Why what was the difference, the monetary difference between what would have happened if you just had a raw, cold calculation of lost earnings and what you actually did. Oh I think some people I don't know how many, but I think some widows or widowers, I should say, would have maybe got thirty five million dollars in tax to pay it, money which I reduced to no more than six and would about on the other end. And on the other end, some people might have got two hundred thousand dollars, and I increased the bottom to up over a million dollars. He turned thirty five million dollars into six for the family of a bond trader, and two hundred thousand dollars into a million for the family of a bus boy, all by himself for free. Feinberg refused to be paid for his work settling the nine to eleven victims Compensation Fund. He doesn't

take money after mass shootings either. He just feels it's his duty to do the job. And hardly anybody complains about the results. Of course, plaintiff lawyers don't like it, but about the only principled objection to Ken Feinberg comes from legal scholars who worry that his success makes a mockery of the legal system. Like this guy. I'm Eric Posner, and I'm a professor of law at the University of Chicago. In his writing, Posners raise questions about the role that Ken Fineberg plays. So the legal system doesn't always reflect people's ordinary moral intuitions about how dispute should be solved. To give me an example, it's like a concrete example or two of outcomes the legal system might generate that would violate common sense notions of fairness. So suppose you're driving your automobile and you run over a wealthy person and kill him. His family sues, you may have to pay damages equal to his lost income, which could be millions of dollars. And then someone else runs over a poor person and the poor person's family sues, and the damages that are awarded might just be a few hundred thousand dollars or less, just like what might have happened after nine to eleven if Fineberg hadn't been there. Because of this legal rule that compensates victims in their families based on their lost income, that values people's lives by how much money they make, and it looks quite unfair because it's as if the law is saying that the wealthy person's life is worth a lot and the poor person's life is worth not that much. And that's very much inconsistent with our moral intuitions about equality. This disconnect between the common sense notion of what's fair and with the legal system produces is allowed to sort of chug along until there's a big spotlight thrown on it, like there was in nine to eleven. Right, So the legal system can chug along as long as you people aren't paying too much attention to it. But when there is some kind of massive public spotlight on the particular conflict that the law is supposed to deal with, people see how it operates out of context, and they can get very angry. I love this idea that the only reason the legal system works is that people don't pay attention to it, that when they do pay attention to it, they're shocked by its unfairness. That the stability of the entire society depends on people not looking too closely at its foundation, because when they do, they get seriously pissed off. And then the system, you know, our system of law and politics, has to address this anger in some way. This anger is a political problem that the legal system is really not set up to address. And that's when ken Feinberg appears. When the anger hits a certain point when people are chucking beer cans onto the field and deciding the game is rigged. Feinberg descends by parachute, and the arena goes quiet, and just about everybody accepts his judgment, and just about everybody agrees it's fair. So so what Ken Feinberg really is as a political solution, That's exactly what he is. He's a political solution. A legal scholar looks at ken Feinberg and asks, why do we turn to this one guy time and again to dispense justice? And why is that justice so obviously different from what our legal system might supply. I'm interested in a different question. I look at ken Feinberg and ask, how the hell does he do it? I mean, how does any citizen of this fractious, unreasonable, entitled, moronic country persuaded to come together and agree on anything? Do they be asking how you're doing that? I don't really think that. Most people who ask me to do this, they don't really prole very much as to how it gets done. They like the results. Right, the time has come to ask him how he does it? So, I see you're a talker, But I loved your book, The One on Wall Street. I went to visit Ken Feinberg at his apartment in the suburbs of Washington, DC. Nice place, not a money person's place, not extravagant. His wife diets with us on the sofa beside us. They're both in their seventies, their kids all grown up and gone. They've earned the right to move to some beach. Let the world find another referee. But they haven't moved since we last spoke. I'm now resolving all of these Catholic priest abuse cases in New York and Pennsylvania. We are the Codinal Dolan in New York and the Archbishop in Philadelphia came and basically said to me, you know, this is one situation where the Jews have to bail out the Catholics, and we've been resolving all these cases. Just how you want to spend your golden years refing the dispute between the Catholic Church and however many Americans have been abused by its employees. But this is clearly Feinberg's idea. I was about to say fun but that's not quite right. It's more like his idea of where he needs to be. Like Finburg GPS, if at any given moment, you want to know where Ken Fineburg is. Just go looking for the most upsetting public controversy. You'll find him in the middle of it. As the neutral and the church came and said, basically, will you meet with individual victims voluntarily if they don't want to, they don't have to, and we'll pay for it. We'll compensate them for the damage we did, horrible damage, I mean penetration, a sodomy rape going back forty years or more. And we've resolve virtually all of the cases in New York. How many were there, Well, we know voluntarily that fifteen hundred people came forward in five dioceses in New York. Oh and fourteen hundred and ninety seven of the fifteen hundred we resolved. The victims don't have to accept Feinberger's judgment, and yet they do. But why, I mean, why do these controversies always find him or he them? And how is it that he always and I mean always gets to a resolution. Well, I think that there are a couple of characteristics. Don't underestimate the importance of empathy, the perception that you're trying to get into that person's shoes and understand the damage, and I think the ability to listen. I've learned the hard way. Don't try

and express too much empathy. It is perceived as hollow. You're not in my shoes, mister Feinberg. You're a higher gun. You can empathize and express support without saying things like I've said in my early years, I know how you feel. I said that one to one person who lost a son in the World's the Pentagon nine eleven attacks. Eighty three year old man buried his son and he said, mister Fiber, you're telling me you know how I feel. You have no idea how I feel, and it sounds pretentious. And I'm just telling you. You've got a tough job. But in the future, people like you listening to them. They do. It's very odd for someone who talks. If you're a talker too, you learn right. Yes, so most people are talker, don't listen. You learn to listen. Sometimes I think that all people who are really good at what they do are like magicians. Asking them how they do it is rude. They don't really want to tell you. They shouldn't tell you because if they tell you, they ruin the trick. But Ken Feinberg, he took money away from guys who ran Wall Street banks. I don't know how anyone does that. I thought that in cutting the pay of the CFO of City Bank, I would go to the CFO and say you don't need three cars, and you don't need a home on Lone Island in the summer, and therefore I'm going to cut your pay by eight and you get pushedback. I figured about who you to tell me what I need? You get victimology. I love these Wall Street victims. You get the CFOs saying you're cutting me by eighty percent. You have made a determination of my self worth. When I look in the mirror in the morning, I'm not thinking about two cars. If you cut my pay, you are telling me I'm not worth what I was getting. They said this kind of thing. Oh my goodness, this was a curveball. This was a curveball. You see. It's not about material gain. If you dare come to me and say I'm only worth twenty percent of what I was worth last year, you have made a determination that my life is meaningless, that I'm only worth a fraction of what I thought i'm worth. What's your response to this. I'm not a rabbi or a priest, you kind of are No, Yeah, Feinberg doesn't want to go there. Part of his job, as he sees it, is to resist the temptation to make anything personal, to expect some connection with the people on the other end of his work. I put it this way, Never take on one of these assignments and expect thank you, gratitude, appreciation. It never ever happens. Never. The most STU can hope for is resignation. And why is that, Well, because you know, if you're worried about stuff like that, you're going to split the baby. You can't worry about how you'll be perceived post mediation, just like a referee in a basketball game can't be worried about how the a team or a player will feel about that referee based on a call that he made or she made. You just have to do your job and have enough sense of self. He's been doing this work for forty years now. He's interacted with countless victims and perpetrators of tragedies. It feels incredib personal, but no one stays in touch with Ken Feinberg. One nine eleven victims sent me flowers on the nine to eleven date for about fifteen years one. And I think it's very important to deliberately push people away and say, this is a horrible chapter. Move on as best you can. It's not easy, and I'm not minimizing it, but move on as best you can. Don't look back to this program or to me or the money. Just move on. And so you push them away. Oh, absolutely, deliberately push them away. I gotta say I don't feel pushed away, at least not sitting on Feinberg's couch. But I notice he's got me on the edge of my seat, wondering when he's going to erupt and fill the air with exclamation points. He's obviously got several traits that make him good at what he does. I can think of at least four, none of which he mentions until I pester him a bit. This is our second interview, by the way, so I'm actually repasting him. And you told me it was a throwaway line at the end of our interview. We did that. You actually hit refereed. Uh. You umpired baseball games in the eighth grade maybe, and refereed basketball games in high school. Uh. And I couldn't believe you buried that that's you buried the lead, as they say in the newsroom, when you were a kid, How did you discover this interest in being in that role? He likes being in charge. That's Ken's wife, d D. She knows the first quality ego. He likes being in charge. Yeah, but he But but you've got to be shrewd about how you're in charge because otherwise people take away the privilege es. No, they aren't exclusive qualities, but you've got If you don't pick the teams fairly, you won't be allowed to pick the teams next time. Second quality political sense, shrewdness, a kind of esp about disputes, a nose for those that can be refereed and those that cannot. For example, somebody says, you know, why don't you get the Israelis and the Arabs to sit down and you can get them t yes in the Middle East? And I would say that, I say to people, that's not true. I wouldn't take on that assignment. You cannot get to us and that assignment because for one thing, you can't get the right people at the table to get to us. You sit down, as I read the newspapers, you sit down with a group of Arabs and say, well, they don't get to yes with Israel, and the Arabs may say yes, they can't deliver their own group people. So I mean, that's a typical assignment where I would say, no, thank you, Ken, why don't you mediate resolution of congressional polarization, let's get inner room, and why don't you help them get to yes? Possible? It would want me, Actually, they would want him. He just wouldn't want them because in those situations he'd lose something more than his time, he'd lose a sense of who he is. That's the third quality. Fineberg has a kind of total immersion in the role of Ken Feinberg. How many kids do you have? Three? And how they're How old are they today? Forty one, thirty nine, and thirty six? So

when they were a little and they were growing up, what role did he play in disputes in the household? You got it, You nailed it right on the head. I was I was the mom who stayed at home with kids, and he was the one who just walked in the house at the end of the day, and I had him settled disputes. We'd sit at the dinner table and we would hold court. Was he good? Yeah, he was good. So you know what's interesting this is I think that I shy from conflict because I have like two modes. It's either we're in a fist fight or we're just getting along. I don't have them. I'm very bad at the middle ground. My wife's army about this all the time, right, And so it's it's I don't like people shouting at me. I don't like people upset with me. I respond very badly to it. So when I'm put in the middle of a dispute, I don't usually respond that well to it. I have trouble remaining neutral and keeping myself out of it. And it sounds like you just don't sound like you really don't. You know, when I try to draw Ken Feinberg out about himself, he's either already got a story at hand, or he acts like he hasn't heard the question. So we're lucky as wife's here. On the flip side, we've been married forty three years. We've never had a fight. I've had a lot of arguments, but we have never had one. But he doesn't engage. You've never had a fight away, but there won't be confrontation it's a lot of self control at his partner. There can't be many married couples in America who've been married more than a few years. I'm arguing, I'm getting agitated and raising my voice, and you know, I just can't and he won't give you anything back. To enter into a dispute as their participant, even with his family, would be a violation of his inner nature or at least some pact he's made with himself to stay removed apart the neutral. A character who's maybe just a little bit feared. That's the fourth quality. Fineberg has a willingness to intimidate, not with force, but with force of character. And all Israel heard of the judgment which the king had rendered, and they feared the king, for they saw that the wisdom of God was in him to administer justice. Okay, so it was my idea to have Ken Feinberg read the Bible. But it's a funny choice of words. They feared the king not because he threatened them, but because of what his disapproval said about them, because he's righteous righteousness. It's not really something you can learn if you're looking to hire someone to be a mediator. What qualities do you look for I mean, I take a minority view. I think I believe that mediators are born, not made. I don't think you can train somebody to be an effective mediator. They either have the talent and the personality or they don't. Either the wisdom of God is in them or it isn't. So we're doing a podcast on referees and people mediators and people who kind of resolve conflicts. And so we were we were ye for recess to talk to the fifth grades because they're the ones they were, you know in battle. Were you, I assume if you're sixth rade this year? But did you? Did you? Were you the kind of person who got involved in other people's conflicts last year? I mean, it depends on what we were doing. I would often solve the conflicts, is how I was playing, because like that's just what I like to do. But you know, so it depends if I'm yeah, I do like to do it, but it depends if I am playing the sport, like if I'm playing, if I'm not playing all just like today out of it just because like I don't know why. So what do you like about the peace process and getting involved in two people who are violating it. Um. I mean, I guess it's just um, it's just um. I just feel proud because then it's like seeing their faces they're like, okay, okay, yeah, you know you actually it actually works. Yeah, it works sometimes. I'm Michael Lewis. Thanks for listening to Against the Rules. Against the Rules is brought to you by Pushkin Industries. The show is produced by Audrey Dilling and Kathin and Girardo, with research assistance from Zoe, Oliver Gray and Beth Johnson. Our editor is Julia Barton. Mia Lobelle is our executive producer. Our theme was composed by Nick Brittel, with additional scoring by Seth Samuel, mastering by Jason Gambrel. Our show was recorded by Tofa Ruth at Northgate Studios in Berkeley. Special thanks to our founders, Jacob Weisberg and Malcolm Gladwell.