The Growing Role of ADR in Multidistrict Litigation

The Judicial Panel on Multidistrict Litigation (MDL Panel) considers for consolidation and transfer the most complex federal cases. In 2011 alone, it reviewed more than 43,750 cases and considered motions for centralization in no fewer than 400,000 matters. Established in 1968, the MDL Panel determines whether related civil cases pending in different federal courts should be transferred to one district court for coordinated and consolidated pre-trial proceedings. The result is a more efficient handling of pre-trial processes that eases the burden on crowded federal dockets.

Alternative dispute resolution (ADR) is playing an ever-increasing role in  MDL cases. Many cases routinely settle while in the transferee courts, with parties engaging special masters, arbitrators and/or mediators.  But ADR is proving useful in many other situations. ADR providers are assisting MDL judges not only in settlement discussions, but also in pre-trial proceedings. This occurred, for example, with the Toyota unintended acceleration case, in which several neutrals have assisted in discovery and related issues.

There is also a case to be made for an even bigger role for ADR in helping to streamline MDL cases. Settlement conferences, for example, could be useful in resolving disputes unique to some of the individual claims transferred by the MDL panel while the transferee court handles the larger common issues.

ADR processes can also run in parallel with proceedings at the district court level. Parties in complex cases often create a national settlement team with the sole job of resolving the litigation. That team usually includes an experienced lead counsel whose only focus is settling the case. The settlement team works closely with both trial and in-house counsel to learn the case and develop strategies for settling the case. The process can be especially useful in focusing discovery, which is often the most expensive aspect of litigation.

It is likely that MDL matters will only increase in numbers, and ADR processes such as the use of special masters and mediators  can and should play a central role in streamlining and resolving these complex cases.