Mediating Complex Cases

Hon. James Rosenbaum is a retired United States District Court Judge for the District of Minnesota and a panelist with JAMS. He can be reached at jrosenbaum@jamsadr.com.

Mediating any case can be difficult. But complex litigation, which includes class actions and Multi-District Litigation (MDLs), presents special issues.

Class actions are governed by Federal Rule 23. State class actions have been limited, but not eliminated, by the Class Action Fairness Act (CAFA).  The state class actions fall under each State’s civil procedures.

MDL cases are a different form of multi-party proceeding.  Where class actions have all parties in one lawsuit, MDLs cases remain separate.  They are administrated by a single judge – often far from where they were filed – for pre-trial purposes.

Class actions and MDLs can be different even before they begin: the plaintiffs are often represented by a plaintiffs’ steering committee.  The lawyers, in many cases, have competed for placement and position on the steering committee.  Placement can be influenced by the lawyer’s experience, the numbers of plaintiff-parties they represent. Prior experience in complex litigation is often a large factor.

Defendants are often represented by similarly-experienced counsel, which means they may have previously defended against the same plaintiffs’ lawyers.  These match-ups of repeat players can add a level of inter-personal complexity, based on their prior experiences.

Settlement of class actions and MDLs can also be complicated by follow-on cases.  These secondary cases can be the product of competing counsel, or they may be similar cases filed in different jurisdiction, or they can be local state class actions (governed by the CAFA and local rules).

The presence of follow-on cases can complicate the primary case, because of possible multiple recoveries, or variant rulings by different judges and courts.  Different jurisdictions often have conflicting rules claims of consumer fraud claims, availability of punitive damages, and different availability and amount of attorneys’ fees.  Tort reform issues can complicate settlement.

Ultimately, settling defendants want to obtain global peace.  This is certainly understandable, but it can be difficult to achieve.  The defendant doesn’t want to settle one case, and then turn around and face another and another.  A mediator who can get his or her arms around all the competing parties, wherever they are located, will bring great value to the parties.