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 products 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 transaction costs of disputes, fairer to the plaintiff to provide faster compensation, and fairer to the defendant have the damages capped in order to lend some predictability to awards. It is apparent, then, that these proponents have focused on the backlog of cases in the court system, with the consequent delays in resolving disputes, and the unpredictability of awards by juries. Thus, they have focused on techniques which not only expedite the resolution process but also involve third parties who would not be likely to succumb to the emotional aspects of the case nor the tactical "artistry" of counsel. In addition, these third parties would include experts able to comprehend the details of complex product liability cases and less inclined than juries to be misled in technical matters. Proponents also cite the privacy of ADR techniques, compared to judicial proceedings, as encouraging more complete revelation of special manufacturing designs or processes, in turn leading to more accurate judgements.
Some of the ADR techniques which have been presented as applicable to product liability disputes are: 1) Arbitration; the controversy i...