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ALTERNATIVE DISPUTE RESOLUTION & PRODUCT LIABILITY.   Term Paper ID:19931 Click to get this paper

Essay Subject: Techniques, compensation, advantages, arbitration, drawbacks.... More...

5 Pages / 1125 Words 4 sources, 14 Citations, TURABIAN Format $20.00 Return to List of Papers

Paper Abstract: Techniques, compensation, advantages, arbitration, drawbacks. Paper Introduction: Alternative Dispute Resolution and Product Liability Alternative dispute resolution techniques, such as mediation and arbitration, have typically been used in commercial and labor disputes. Their use in product liability disputes has not been widespread, and many of the techniques have limited usefulness in this context. Certain techniques, however, can be useful in certain situations, and their use has been advocated by segments of state and the federal government. It should be noted that cases which are resolved through the use of these techniques do not reach appellate judicial review and are therefore not reported. Proponents of the use of ADR techniques in product liability argue the need for swift and efficient systems of compensation. They claim that it is fairer to both sides to reduce the Text of the Paper: The entire text of the paper is shown below. However, the text is somewhat scrambled. We want to give you as much information as we possibly can about our papers and essays, but we cannot give them away for free. In the text below you will find that while disordered, many of the phrases are essentially intact. From this text you will be able to get a solid sense of the writing style, the concepts addressed, and the sources used in the research paper. The Canadian Experience with Alternative DisputeResolution in Products Liability Cases. Bell).9Thomas, The Canadian Experience with Alternative Dispute Resolution inProducts Liability Cases, 17 CANADA-U.S. It hasbeen pointed out that ADR is most effective when it helps parties in anongoing relationship to work out disagreements, resolves disputes in areasnot fully covered by legal rules and principles, and efficiently processesroutine claims which do not require authoritative rulings from a court. As a result, if theclaims or settlement procedures are perceived as unfair, their value aseffective means of ADR is diminished. Air L. The criteria used in drafting the arbitration provision of the ModelAct included: 1) ensuring reasonable compensation; 2) ensuring theavailability of affordable liability insurance and adequate coverage; 3)giving incentives for loss prevention on the part of parties best able toaccomplish the goal; 4) expediting the reparations process; and 5)minimizing accident, prevention, and transaction costs6. In addition, ADR techniques could be used toadminister settlement funds established for future claims, such as those inAgent Orange and Dalkon Shield litigation. Its use in productliability was advocated by the Model Uniform Product Liability Act, draftedby the Department of Commerce in the late 197 s and offered to the statesfor approval on an individual basis. 359, 361-2 (1991).6Arnold, supra note 2, at 377.7Id., citing FINAL REPORT OF THE FEDERAL INTERAGENCY TASK FORCE ONPRODUCT LIABILITY (1977).8Arnold, supra note 2, at 388, citing Hearings on S. This would free the courtscurrently administering the funds to hear other cases14. With theknowledge that resort to the legal system is unlikely, defendants may bedissuaded from undertaking good faith negotiations. L.J. 479, 499 (1988).2Arnold, Model Uniform Product Liability Act: An Analysis of ArbitrationClaims Under Section 116, 46 J. They claim thatit is fairer to both sides to reduce the transaction costs of disputes,fairer to the plaintiff to provide faster compensation, and fairer to thedefendant to have the damages capped in order to lend some predictabilityto awards1. 2d Sess. 46 JOURNAL OF AIR LAW & COMMERCE359-88 (1981) .Thomas, Bruce A. In the end, however, Section 116 of the Act did not follow theserecommendations; instead, it provides for voluntary non-bindingarbitration, with the possibility of being assessed the costs of the otherside's litigation if one side should demand trial following arbitration.This approach has been criticized as retaining none of the positivequalities of the two traditional forms of arbitration; the only remainingincentive for the parties to arbitrate their dispute is to avoid longdelays. 359, 377-78 (1981).3Id.4Zollers, supra note 1, at 483-7.5Wheeler, Comparative Aspects of Dispute Resolution in Particular SubjectAreas: Product Liability, 17 CANADA-U.S. It is apparent, then, that these proponents have focused onthe backlog of cases in the court system, with the consequent delays inresolving disputes, and the unpredictability of awards by juries. at 5 2.12Id. Alternative Dispute Resolution and ProductLiability Reform. 5) "Rent-a-judge;" available under the laws of the particularjurisdiction, this allows parties to hire retired judges to hear their caseand render a binding decision5. Proponents also cite theprivacy of ADR techniques, compared to judicial proceedings, as encouragingmore complete revelation of special manufacturing designs or processes, inturn leading to more accurate judgements3. at 5 5-6.14Id. 26 AMERICAN BUSINESS LAW JOURNAL 479-51 (1988).----------------------- 8 Overall, some of the attributes of ADR in product liability can besummarized as follows. & Com. Prior to thefinal drafting of the Model Act, it was suggested that the best way toaccomplish these goals was to draft a provision requiring mandatory non-binding arbitration. 363, 372-3 (1991).1 Zollers, supra note 1, at 499-5 .11Id. at 5 3.13Id. Proponents of the use of ADR techniques in product liability arguethe need for swift and efficient systems of compensation. 2) Mediation; this involves a third partywho does not actually render a decision but facilitates the reaching of amutually agreeable resolution by the parties. Ofthese conditions, only the last might be found in the current productliability environment. 17 CANADA- UNITED STATES LAWJOURNAL 359-62 (1991).Zollers, Frances E. In addition, these third parties would include experts able tocomprehend the details of complex product liability cases and less inclinedthan juries to be misled in technical matters2. There are drawbacks to the use of ADR techniques in this context.Valid claims which are not settled in the ADR process may never reach theconventional legal system out of f ear of the costs and delays. Certain laws mandate it as a method ofresolving disputes, as do many commercial contracts. at 5 8. Comparative Aspects of Dispute Resolution inParticular Subject Areas: Product Liability. L.J. 4)Summary jury trial; this technique replicates a jury trial except that bothsides present summaries of their cases to a mock jury, whose membersdeliberate and return a decision and their perceptions of the merits of thecases4. There is little savings in money, for it has been estimated thatthe cost of preparing and conducting a trial is not substantially more thanthe expenses incurred in arbitration where the claim involves more than$5 , 8. Model Uniform Product Liability Act: An Analysis ofArbitration Claims Under Section 116. L.J. This would mean that parties would be required tosubmit to the arbitration process but that the resulting decision would notbe binding on the parties (not enforceable as a judicial decision)7.Alternatively, voluntary binding arbitration would not require the partiesto submit their dispute to arbitration but would give the arbitrationdecision the same effect as a judicial decision. BibliographyArnold, Thomas B. Endnotes1Zollers, Alternative Dispute Resolution and Product Liability Reform,26 Am. Bus. Of all of these techniques, the one which has received the mostattention is that of arbitration. Another drawback is that product liability law is not settled, withcourts continuing to struggle with the questions of enterprise liability,causation in toxic tort litigation, and the interplay of bankruptcy law andproduct liability. In contrast, many view the judicialsystem as an institution which balances the inequalities of the parties whocome before it1 . Alternative Dispute Resolution and Product Liability Alternative dispute resolution techniques, such as mediation andarbitration, have typically been used in commercial and labor disputes.Their use in product liability disputes has not been widespread, and manyof the techniques have limited usefulness in this context. Thus, ADR techniques might be valuable in caseswhere the issues of defectiveness and the responsibility of insurancecarriers to pay have been previously settled and the remaining issues aretime, place, and causation13. First, the biggest savings comes in terms of time,rather than money; in fact, ADR techniques frequently involve the use ofarbitrators and retired judges who are expensive and often out of thefinancial reach of plaintiffs. 3) Mini-trial; this is a pre-trial proceeding where each side is given a chance to present its bestcase, in summary form, to decision makers in the presence of a neutraladviser. The purpose of this technique is to give both sides enoughinformation in advance of a trial so that they can honestly assess therelative merits of the claims and reach a settlement prior to trial. 17 CANADA-UNITED STATES LAWJOURNAL 363-75 (1991).Wheeler, Malcolm E. So, what might be the prospects of ADR in product liability? Finally, it sometimes becomesnecessary to judicially disapprove of certain actions; liability serves asa warning to others who might disregard the public safety12. Certaintechniques, however, can be useful in certain situations, and their use hasbeen advocated by segments of state and the federal government. Third, sinceADR specialists must satisfy the needs of their "customers" on both sidesor face the prospect of no repeat business, it is unlikely that both sideswill be completely satisfied9. 2253 Before theSubcomm. Thus,they have focused on techniques which not only expedite the resolutionprocess but also involve third parties who would not be likely to succumbto the emotional aspects of the case nor the tactical "artistry" ofcounsel. It shouldbe noted that cases which are resolved through the use of these techniquesdo not reach appellate judicial review and are therefore not reported. 42(1978) (statement of Griffin B. Further development of the law willthen be impeded as fewer opportunities arise for authoritative statementson the nature and extent of liability11. on Improvements in Judicial Machinery, 95th Cong. Some of the ADR techniques which have been presented as applicable toproduct liability disputes are: 1) Arbitration; the controversy is heardand resolved by a third party, often an expert, in a hearing which is lessformal than a court proceeding. Second, ADR techniques are typicallydesigned to help manufacturers avoid the hidden costs of litigation, suchas negative publicity and the resulting harm to reputation. If large numbers of cases are diverted from thejudicial system,courts will be unable to effectively articulate new rulesof law concerning these questions. If this paper is not what you are looking for, you can search again: Search for: or Click here to request an essay written just for you.