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Mediation for Improved Class Action Settlements: Timing, Process, Insurance, Techniques, Critical Terms

Recording of a 90-minute CLE webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, August 12, 2020

Recorded event now available

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This CLE course will provide counsel with an in-depth understanding of class action mediation and its value in getting relief to plaintiffs and finality for defendants. An experienced class action mediator can be critical to not only resolving the issues between plaintiffs and defendants but also in addressing unique problems that may arise among plaintiffs' counsel. If insurers are involved in the settlement, they may have different agendas than their policyholders. As important as these benefits are, however, the use of mediation may also be critical to persuading the court that the conditions in Rule 23(e) are satisfied, that notice of a proposed settlement is appropriate, and that the settlement should receive final approval.

Description

Federal Rule Civil Procedure 23(e) requires court approval before claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised. Under Rule 23(e)(1), before notice of the settlement can be sent to settlement class members, the court must conclude that it "will likely be able to approve" the proposed settlement and that it will likely be able to certify the proposed class. Rule 23(e)(2) sets out several factors courts must consider in deciding whether the settlement is fair, adequate, and reasonable, and should receive final approval.

Mediation is a vital tool not only for reaching a class settlement but also for having sufficient data and evidence to present to the court to justify notice to the class under Rule 23(e)(1) and final approval under Rule 23(e)(2). The involvement of a neutral mediator can demonstrate that the settlement negotiation was at arms-length without collusion and that the requirements of the Rule have been met.

But even at mediation, there are significant terms and issues to address, such as the settlement class definition, the scope of releases, the timing and manner of payments, settlement administration, the disposition of unclaimed funds, injunctive relief, and what happens if the settlement fails.

Listen as this experienced panel discusses why mediation with a mediator experienced in class actions has become an indispensable tool in class action settlements.

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Outline

  1. Timing of mediation
  2. The role of insurance
  3. Process-related issues
  4. Negotiation techniques
  5. Role of the mediator

Benefits

This panel will review these and other issues that may arise in mediation:

  • Balancing the costs of litigation against risk management decisions with limited information
  • How to conduct the risk analysis
  • Dealing with insurer vs. insured dynamics
  • What to do when the parties seem hopelessly apart
  • When should the mediator make a settlement proposal?
  • What key terms should be documented in a mediation term sheet?

Faculty

Frederico, Donald
Donald R. (Don) Frederico
Partner
Pierce Atwood

Mr. Frederico leads Pierce Atwood's class action defense practice, which has received a National Tier One ranking...  |  Read More

Schwartz, Bryan
Bryan Schwartz
Attorney
Bryan Schwartz Law

Mr. Schwartz has represented clients' interests before a wide range of adjudicative bodies: from the United States...  |  Read More

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