By Pelto, Corby
Dispute Resolution Journal , Vol. 57, No. 2
Corby Pelto observes that most people are conditioned to compromise and resolve their disputes with each other. As social creatures, he says, human beings depend on one another in order to survive. The use of ADR processes in mass tort claims are an extension of that basic human inclination to build bridges. The following article is adapted from a speech Pelto delivered at the 40th Annual RIMS Conference in Now Orleans earlier this year.
From childhood through adulthood, human beings have learned to resolve disputes through compromise. We have been conditioned to compromise with others in an effort to seek win-win outcomes for our problems. In essence, we were taught that success in life was dependent upon our ability to resolve our disputes through the art of bridgebuilding.
The lessons that we learned about dispute resolution as children have some parallels to our perceptions and approaches to dispute resolution in resolving mass tort claims in the liability claims arena. Given the exposure and public media attention that mass tort claims often present to defendants, an effective ADR process is critical in not only managing the exposure but in ensuring that the resolution is as expeditious as possible.
Effective ADR Programs
Although litigation is sometimes necessary in order to assess negligence and causation in a claim, there is a fair percentage of claims litigated because of factors such as inadequate case preparation, unrealistic expectations, or uncertainty with respect to the case value.
An effective ADR program can help in flushing out the facts in the case. It can also assist both parties in understanding the case complexity and value ranges so that they will feel more comfortable in either lowering a demand or increasing an offer of settlement. Listed below are five basic objectives that should be part of an effective mass tort ADR strategy.
Build Areas of Agreement
One of the biggest obstacles to reaching a compromise in disputed claims is the gap in claim evaluation and perspectives between the opposing parties.
Claim value ranges are influenced by the nature of injury, negligence, damages, precedent, jurisdictional influence, joint and several liability, jury sympathy factors, expert witness testimony, credibility of witnesses, physical evidence, and other variables.
If a bridge is to be built between the plaintiff and defendant position, it is necessary to bring as much mutual agreement as possible to the table. Building agreement is the first step in building a bridge towards possible resolution.
2. Manage the Communication Process
It is not uncommon for settlement negotiations between plaintiff and defendant representatives to result in excessive posturing and debate in order to move the opposing party within a closer settlement range. Communications can have a deterrent effect on claim resolutions if not handled properly.
Unfortunately, few claims adjusters or attorneys are adequately trained in the art of communications, compromise, and negotiation. Too often, the strategy of both sides is to line up their arguments like blocks of stone and see how many blocks are left standing after the battle of debates.
The ADR process can help to ensure that communications are managed effectively. A "gap analysis" process can help in identifying the key areas of disagreement. Mediators are often effective in managing the communication process, and in narrowing and better defining the gaps that block settlement.
3. Diffuse Emotional Attachment
There are times when emotional attachment impedes settlement in disputed claims. The ADR process can assist with reducing the degree of emotional attachment.
For example, an attorney friend of mine once participated in an ADR case stemming from the death of a child. The case was very emotional and deadlocked until the defense offered to erect a playground in honor of the deceased child. …