A glass half full, a glass half empty : the use of alternative dispute resolution in mass personal injury litigation

by Deborah R. Hensler

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To determine whether the use of alternative dispute resolution (ADR) might help the civil justice system deal with the increasing amount of mass personal injury litigation, the author briefly surveys the many forms of ADR (conciliation, mediation, arbitration, and other nonadjudicative or quasi-adjudicative mechanisms to resolve cases). For purposes of this discussion, she defines ADR as comprising procedures for resolving disputes that, compared with the traditional litigation process of adversarial negotiation and trial, enhance parties' (the real parties, not their legal representatives) control over litigation outcomes or processes. The author then discusses various problems that courts face as they deal with mass personal injury litigation, highlighting the issues of scale, uncertainty, asymmetrical risks between plaintiffs' attorneys and defendants, estimating the number and characteristics of future claimants, conflicts of interest between and among attorneys and their clients, and equitable distribution of compensation. Finally, she considers the extent to which the procedural responses to mass personal injury litigation can be characterized as ADR and how well they have dealt with the special problems of mass tort litigation. She suggests that, to determine how well dispute resolution procedures--ADR or other--serve mass tort claimants, it will be necessary to bring plaintiffs into the dialogue on mass personal injury litigation.

Originally published in: Texas Law Review, v. 73, no. 7, June 1995, pp. 1587-1626.

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