Alternative Dispute-Resolution Mechanisms

In the federal courts, alternative dispute-resolution mechanisms, such as summary jury trials, court-annexed arbitration or mediation, or minitrials, have not been applied until very recently to as­bestos cases. In the OAL plan, the court notes that “[m]ost of these alternative dispute resolution processes have been developed and applied primarily in situations that differ in many important re­spects  from  asbestos litigation.”¹⁰³  Accordingly,  the  court concludes that “alternative dispute resolution processes will be applied to OAL cases only

(1) on an individualized or small group basis,

(2)       after careful tailoring of the process to the specific case, and

(3)       with the appropriate cooperation of counsel.”¹⁰⁴ Routine use of
alternative dispute-resolution mechanisms awaits the results of developments in the Northern District of Ohio, where summary jury trials are being used in asbestos cases. The Asbestos Claims Facility to be created by defendants and their insurers also provides for alternative dispute-resolution mechanisms.

There is room for skepticism about the applicability of alternative dispute-resolution mechanisms to asbestos litigation. In the Court of Common Pleas of Philadelphia, Judge Harry A. Takiff de­vised a program called the Philadelphia Non-Jury Trial Pro­gram.¹⁰⁵ Asbestos cases were presented for bench trials, using a re­verse bifurcation in which the issue of damages was tried prior to the issue of liability. The theory was that a reason for delay in set­tlement is a lack of information about the value of the case. If set­tlement was not reached after the damages portion, liability was tried. If no settlement was reached after the bench trial, either party had a right to a trial de novo.

After experience with 234 nonjury verdicts, the court suspended operation of the program because of the number of appeals for a trial de novo—approximately 130, or 55 percent of the total.¹⁰⁶ In Judge Takiff s opinion, the delay in scheduling jury trials on appeals from the bench trial thwarted the successful operation of the program; the judge believes that the jury trial should be held within fifteen days of the appeal of the nonjury verdict.¹⁰⁷ Prior to the program’s suspension, the nonjury trials lasted either a day or a half-day, compared with a week or more for jury trials. Original­ly, the nonjury trials lasted two to two and one-half days.¹⁰⁸

Given the experience of the Philadelphiaprogram and the feder­al courts’ lack of experience with alternative dispute-resolution mechanisms in the context of asbestos litigation, the most that can be said is that the applicability of such alternatives to asbestos litigation has not been proven. Assuming that the parties have a right to a de novo jury trial,¹⁰⁹one must question whether mandatory nonjury procedures are economical. A hypothetical example illustrates this point. Assume a caseload of one hundred cases and that one-half of the cases (the approximate rate in the Philadelphiapro­gram¹¹⁰) proceed to alternative dispute-resolution proceedings that require one day each of judicial time. Conducting the alternative proceedings might require more judicial time than would conduct­ing jury trials. The fifty alternative proceedings would require fifty days of trial time plus an unknown number of days for those cases in which one of the parties exercises the right to a jury trial. As­suming a traditional system and a 90 percent settlement rate, the ten cases that went to trial would require fifty days of trial time at a rate of one week per case. Although creation of an alternative system made sense when asbestos cases showed strong resistance to settlement, such a system may be unnecessary and even counter ­productive as settlement of asbestos cases becomes more routine.

In summary, even the experience in Philadelphia with an alternative dispute-resolution mechanism demonstrates the validity of the general principle of case management that setting a firm and credible trial date is the most effective stimulus to final disposition of a case. Insertion of a procedure prior to the trial may only serve to prolong many of the cases and siphon resources away from tradi­tional judicial functions such as ruling on motions and trying cases. Experience with asbestos litigation to date tends to show that the trial date need not be absolutely firm or credible as long as the court demonstrates a concrete commitment to proceed to trial in the near future and takes steps to uphold that commitment.

1. Lambros et al., supra note 45, at 28. In a descriptive analysis of the summary
   jury trial procedure, the authors conclude that summary jury trials are applicable
   to “a fairly narrow profile of cases,” generally those involving only one plaintiff and
   one defendant. M.-D. Jacoubovitch & C. Moore, Summary Jury Trials in the Northern District of Ohio 32 (Federal Judicial Center 1982).
   1. Lambros et al., supra note 45, at 28.
   2. See generally Judicial Administration Working Group on Asbestos Litigation,
      Final Report With Recommendations 15-16 (National Center for State Courts 1984).
   3. Judge Takiff Reviews Philadelphia Non-Jury Trial Program, Mealey’s Litig.
      Reps. Asbestos, July 13, 1984, at 872.
      1. Id. at 872-73.
      2. Id. at 873.
      3. See generally G, Bermant et al., supra note 48, at 6-9.
         1. Judicial Administration Working Group, supra note 105, at 15-16.