The innovative bellwether mediation process is a proven tool for identifying representative cases, determining their true value, and driving mass tort resolution faster and more efficiently than a bellwether trial. While the bellwether trial approach has its benefits, it frequently generates inconsistent results, requires an incredible amount of resources, strains an already burdened court system, and delays resolution for non-bellwether plaintiffs. Conversely, bellwether mediations can resolve a significant number of cases in the time it takes to bring one bellwether case to trial. The parties can also leverage the information gained from the bellwether mediation process to structure a broader settlement. Taking the bellwether process out of the courtroom and into the conference room can indeed minimize the burden to the court system, while driving resolution for a broader number of claimants.

Mass torts are unique from class actions in that every plaintiff retains their individual claim. See 28 U.S.C. §1407. The parties, therefore, must develop a method to resolve each mass tort case. The bellwether trial process in a mass tort requires the parties to select a pool of cases for trial work-up that is representative of either all or a portion of the cases pending in the litigation. See Amir Seyedfarshi, “Binding Bellwether Trials in Multidistrict Litigation and the Right to Jury Trial,” 17 W. Mich. Cooley J. Prac. &; Clinical L. 295, 297; 298-304 (2015); Jonathan Steinberg, Note, “The False Promise of MDL Bellwether Reform: How Mandatory Bellwether Trial Consent Would Further Mire Multidistrict Litigation,” 96 N.Y.U.L. Rev. 809, 826 (2021) (discussing importance of trial plan in creating representative plaintiff pool). The goal of the bellwether trial is to generate information about the strengths, weaknesses, and values of claims. At the conclusion of this process, the parties and the court use this information to develop a plan for resolving the mass tort. Adam S. Zimmerman, ”Civil Litigation Ethics at a Time of Vanishing Trial: The Bellwether Settlement,” 85 Fordham L. Rev. 2275, 2289. Frequently, however, mass torts include plaintiffs with a variety of distinct products and injuries, requiring the parties to identify and try multiple pools of bellwether cases in order to obtain the data that the bellwether process is designed to generate. See Steinberg, 96 N.Y.U.L. Rev. at 826 (noting limitations of bellwether trials include developing representative claimant pools, restrictions on venue, and binding non-bellwether plaintiffs to trial results). The bellwether trial process, therefore, is expensive, time consuming, and prone to gamesmanship by both sides. Moreover, the lopsided verdicts that bellwether trials generate are difficult to extrapolate over large, diverse plaintiff populations and can hinder rather than promote final resolution.