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Mediating Mass Torts, Class, and Consolidated Cases

When it comes to mediating mass tort, class, complex, or just massive, cases, fashioning a resolution that all the parties can live with, and that a court will approve, can often feel nearly impossible.

However, it is not just possible, but reaching a mediated resolution is frequently the best option for everyone involved, and the numbers back that up. For defendants, setting up a settlement fund that can be administered by a third party can help avoid the costs and negative PR of moving forward with litigation. For plaintiffs, reaching a mediated resolution allows the dispute to be resolved with certainty and in a timely fashion, as cases that go to judgment will often go to appeal and take a decade to finally resolve.

Aligning Interests

When mediating any case, large or small, one of the keys to reaching a resolution is aligning the interests of the parties. While every party is usually willing to settle, the dollar amount at which they'll do it is usually so far at odds that it can take more than one mediation session just to reach a figure, if that's even possible at all.

In mass cases, plaintiffs are generally concerned with ensuring that everyone receives fair and just compensation for the injuries or damages suffered, and that no future harms occur. Defendants generally are trying to get out of trouble as economically as possible, avoid future liability, and not ruin their public reputation.

Reality Check

In reality, mediating massive cases is no simple feat. Take, for example, the recently announced mediation in the consolidated Flint water crisis case. Many plaintiffs have suffered serious, long term injuries, and given the facts surrounding the crisis, in cases of clear causation, liability would be rather difficult to deny. But fashioning a resolution will not be a simple task.

One problem for the plaintiffs to overcome in the case is the need for immediate resolution in order to be able to afford potentially needed, or already received, medical care, and lead abatement. When mediating multi-plaintiff or consolidated cases, often mediators, or special masters, can help explain to each plaintiff how settlement matrixes and funds work, and how case values are discounted (and why).

Frequently, this information won't sink in until someone other than you tells your client about how their type of case settlement actually works. Clients want typicality, that is, they want to know that they got the same, or a better, deal than someone else in their same position. When a mediator tells your client the same thing you already told them, it reinforces that notion, and reassures the client of your guidance.

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