Is ADR Appropriate in Mass Tort and Class Actions?
Unlike settlements of ordinary tort litigation, mass tort and class action settlements can create a monetary pool covering numerous claims. The settlements are frequently funded by multiple defendants. ADR may be effective in resolving disputes involving such settlements.
ADR procedures may include negotiation, mediation or arbitration, or a combination of these. In one class action settlement, parties agreed that the class members would submit their claims to a claim-review process, which included the right to appeal to a mediator/arbitrator selected from an American Arbitration Association roster. First, a claim determination is made by a claim review team appointed by the defendant. Second, if a class member is dissatisfied with a claim-review team’s decision, the class member may obtain de novo review of the claim by an independent mediator/arbitrator.
Mediation may be appropriate in resolving mass torts, including defective products, defective drugs, and environmental exposure actions. (Fireman’s Fund Ins. Co. v. Flint Hosiery Mills, Inc.) Mediation can offer a solution to the myriad of problems associated with trying a mass tort case, by opening communications between the parties. The parties should evaluate a case for mediation early in the case, before the parties become hardened in their positions and before unnecessary funds are spent on discovery and pretrial motions.