Science in the Court: Is There a Role for Alternative Dispute Resolution?

by Deborah R. Hensler

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As a result of changes in legal doctrine and litigation practices there has been a recent explosion of tort cases (e.g. medical liability and product liability cases) for which scientific questions are central. Although there are many reasons for the problematic character of this litigation, some observers have suggested that the problems associated with thee types of cases could be mitigated by modifying court procedures for dealing with the scientific questions on which most cases turn. Coincidentally, while these substantive developments in tort liability have been taking place, a significant procedural change has occurred in the civil litigation process. Increasingly, alternative dispute resolution (ADR) mechanisms (e.g. arbitration and mediation) are being substituted for traditional court decisionmaking processes, such as jury trial. Many proponents of ADR are primarily interested in reducing the transaction costs of civil case processing. But some have asked whether ADR might remedy perceived problems in court procedures for dealing the scientific questions in court cases. This article examines this question. It reviews the concerns that have been raised about court resolution of scientific issues and the criticisms that have been voiced regarding medical malpractice, products liability, and toxic tort litigation. It reviews the objectives of the ADR movement, describes the major forms of ADR in use today, discusses their use in medical malpractice, products liablility, and mass toxic tort cases, and summarizes the empirical evidence on the consequences of utilizing each of these forms for key aspects of dispute resolution. Finally, it considers whether and how ADR can contribute to improving court procedures for dealing with scientific questions.

Originally published in: Law and contemporary problems, v. 54, no. 3, Summer 1991, pp. 171-193.

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