Originially from: World Arbitration and Mediation Review (WAMR)

CONSOLIDATION, NOT ADR, IS KEY IN SETTLEMENT
OF ASBESTOS LITIGATION
By Sophie C. Cook, Consulting Editor for U.S. Developments
INTRODUCTION
Early proponents of alternative dispute resolution in the United States hoped it
would help resolve large, complex cases, based on its use in the Agent Orange
litigation and other mass torts. However, according to an April 1990 Federal
Courts Study Committee report on improving the effectiveness of the federal
judiciary, ADR’s potential in resolving the “mega-case” is still unclear (see 4
ADRR 133). Although the committee’s report endorsed -wider use of ADR in U.S.
federal courts, the report asked for further study before recommending ADR in
large-scale litigation.
Personal injury claims arising from exposure to asbestos and asbestos-related
products illustrate the problems inherent in the mega-case, both with the use of
traditional remedies and with creative solutions such as ADR. Although courts
have used ADR in attempts to settle multi-party asbestos litigation, as well as to
settle individual asbestos-related claims, success in finding an efficient, fair, and
inexpensive method of resolution has eluded them.
In the article that follows, a federal judge who has played a leading role in
managing asbestos litigation presents an overview of the problem of mass torts in
general, and asbestos cases in particular. His comments are followed by those of
a mediator who has been active in trying to reach global settlements of asbestos
lawsuits, Finally, the article presents some remarks on participation in mediation
of individual asbestos claims by individuals who work for the Manville Personal
Injury Settlement Trust. These materials have been supplemented by published
reports in BNA publications concerning the cases discussed.
A JUDGE’S VIEW OF MASS TORTS
“The problem of mass torts is so perplexing as to be almost unresolveable,”
according to the Hon. Jack B. Weinstein, of the U.S. District Court for the Eastern
District of New York, who addressed the ADR Section of the Association of
American Law Schools in Washington, D.C., on Jan. 6. “Society appears
incapable of providing institutional techniques for resolution of these cases,” he
said, while, at the same time, “there is no real capacity to provide individual
remedies.”