February 05, 2016 Articles

Making the Most of a Matrix-Driven Mass Tort Mediation Session

By Alex Polsky

Mass tort cases are designed to resolve large numbers of claims filed by individuals who have suffered similar injuries. But as often happens in life, many of us believe we are unique individuals and that our case is different, so some plaintiffs refuse an initial offer to settle. As much as 5 percent of plaintiffs in mass tort litigation refuse an offer that is part of a global settlement.

This presents a problem for both plaintiff and defense counsel. Plaintiffs may not have the desire or resources to try large numbers of opt-outs. And defense counsel want to contain risk and have financial certainty by bringing as many cases into a global settlement as possible.

The reluctance of some plaintiffs to accept an initial settlement, particularly in mass tort cases with serious injuries, is understandable. Their lives may have changed drastically since the event that harmed them. If the plaintiffs’ firm has a large number of cases, the clients may not have spoken with their lawyer in person or by phone since they signed a retainer. They may have unrealistic expectations based on what they’ve read about the case on the Internet and may have a hard time accepting a figure that is below what they thought they would get or feel they deserve.

When these cases find their way to a settlement special master or mediator, special care is needed to handle them fairly and efficiently. It is part science and part art. First, the science.

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