Mass torts and other mass claims are becoming an ever more popular forum for the use of alternative dispute resolution to resolve parties' claims in the wake of events that produce thousands of conflicts overnight. Mediation, in particular, has been used in several high-profile mass disaster events in an effort to resolve individual claims efficiently and quickly. This paper evaluates special risks posed in this kind of mediation that can go to the heart and the integrity of the mediation process. The thesis of this paper is that the potential imbalance in the parties' experience, education, and individual situation can contribute to a power imbalance which creates the risk of coercion and lack of informed consent. Moreover, external factors, like politics, culture, and the economy can affect how power is distributed at the bargaining table. Factors that are internal to the victims of the disaster can affect an individual's cognitive functioning after being involved in a mass disaster, potentially affecting consent to an agreement. The way to resolve those problems may be to think more carefully about the process design so that safeguards are in place that will protect process integrity, decrease the imbalance of power between bargaining parties, and increase mediator awareness of special risks posed by mass disaster situations. Such changes would increase the usefulness of mediation in this context.
Elizabeth Baker Murrill,
Mass Disaster Mediation: Innovative, ADR, or a Lion's Den?,
7 Pepp. Disp. Resol. L.J.
Available at: https://digitalcommons.pepperdine.edu/drlj/vol7/iss3/2