Friday, March 17, 2017

Zimmerman on Bellwether Settlements

Adam Zimmerman has posted his new article "Bellwether Settlements" to SSRN.  The abstract is below:

This Article examines the use of bellwether mediation in mass litigation.
Bellwether mediations are different from “bellwether trials,” a practice
where parties choose a representative sample of cases for trial to determine
how to resolve a much larger number of similar cases. In bellwether
mediations, the parties instead rely on a representative sample of settlement
outcomes overseen by judges and court-appointed mediators.

The hope behind bellwether mediation is that different settlement
outcomes, not trials, will offer the parties crucial building blocks to forge a
comprehensive global resolution. In so doing, the process attempts to (1)
yield important information about claims, remedies, and strategies that
parties often would not share in preparation for a high-stakes trial; (2) avoid
outlier or clustering verdicts that threaten a global resolution for all the
claims; and (3) build trust among counsel in ways that do not usually occur
until much later in the litigation process.

The embrace of such “bellwether settlements” raises new questions about
the roles of the judge and jury in mass litigation. What function do courts
serve when large cases push judges outside their traditional roles as
adjudicators of adverse claims, supervisors of controlled fact-finding, and
interpreters of law? This Article argues that, as in other areas of aggregate
litigation, courts can play a vital “information-forcing” role in bellwether
settlement practice. Even in a system dominated by settlement, judges can
help parties set ground rules, open lines of communication, and, in the
process, make more reasoned trade-offs. In so doing, courts protect the
procedural, substantive, and rule-of-law values that aggregate settlements
may threaten.

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