Originally from Dispute Resolution Journal

Preview Page

In the following article, Paul Nicolai highlights the main differences that exist between handling mass claims panel cases and traditional court-referred cases. Drawing from his own experiences as a member of a mass claims panel, Nicolai outlines the procedural and the substantive differences that exist, and points out the significant role technology will play in the handling of such cases.
Being a member of a mass claims panel can be like Dickens’ A Tale of Two Cities, the best of times or the worst of times. Sometimes, it is both.

It can be the best of times if you take the time to understand the differences between being a member of a mass claims panel and traditional forms of arbitration and mediation, if you accommodate for those differences in the administrative procedures, and if you properly prepare your support staff to handle the volumes of cases associated with being a mass claims panel member. However, if your support staff, administrative procedures, and personal understanding of your role are not properly aligned with the realities of being a mass claims panel member, it can quickly become the worst of times.

A mass claims panel is a panel of mediator/arbitrator reviewers appointed to handle claims resulting from a settlement or judgment in a class-action litigation. Compared to the “normal” arbitration or mediation context, the closest comparison is to a court-referred case—but with three major differences. First, instead of a matter being referred by a court before a decision or settlement has been made, these matters are referred as a result of a final settlement. Second, instead of being a single claim by one or a few parties, it is literally hundreds or thousands of claims by just as many class members. And, third, based on the particular parameters of the settlement, each class member may have one or more claims.

The Differences of Mass Claims Panels
The most profound difference between handling mass claims panel cases and traditional court-referred cases is the fact that most mass claims panel cases are the result of a settlement agreement reached by the parties in a class-action litigation. The case has already been settled. The role of a panel member is to effect the settlement terms concerning the specific claims of the claimants.

The settlement agreements at the end of most litigations consist of several relatively standard provisions. Usually there is a reference to the underlying litigation, a release, and a payment requirement. The typical settlement agreement is relatively self-executing, and once the required payment is made the agreement is effective and for the most part forgotten.

A settlement agreement which results in the creation of a mass claims panel is different in many respects. First, the agreement is generally the settlement of a class litigation. As a result, the terms and conditions of these agreements are more highly negotiated than the typical settlement agreement. Second, because it is the settlement of a class litigation, the settlement agreement is subject to approval by the court and is ultimately expressed in a court order, not in the agreement itself.