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59 Alb. L. Rev. 881 (1995-1996)
Creative Use of ADR: The Court-Appointed Special Settlement Master

handle is hein.journals/albany59 and id is 905 raw text is: CREATIVE USE OF ADR: THE COURT-APPOINTED SPECIAL SETTLEMENT MASTER Kenneth R. Feinberg* Increased access to both federal and state courts in an effort to resolve controversies pertaining to mass torts, environmental disputes, employment discrimination claims, and other burgeoning litigation has resulted in a new effort by the judiciary to achieve settlement through the innovative use of court-appointed Special Settlement Masters.' Docket control and shrinking judicial resources require new creative case management techniques aimed at the comprehensive resolution of such complex litigation.2 The * B.A., University of Massachusetts; J.D., New York University School of Law. The author has been a court appointed Special Settlement Master in a series of highly visible litigations. See, e.g., In re DES Cases, 789 F.Supp. 552 (E.D.N.Y. 1992) (ruling on various procedural issues involved in the DES mass tort litigation), appeal dismissed, 7 F.3d 20 (2d Cir. 1993); In re Joint E. & S. Dists. Asbestos Litig., 737 F. Supp. 735 (E. & S.D.N.Y., N.Y. Sup. Ct. 1990) (appointing the author as Special Master to assist parties in pending state and federal cases alleging injury from exposure to asbestos in their settlement negotiations); In re Agent Orange Prod. Liab. Litig., 611 F. Supp. 1396 (E.D.N.Y. 1985) (adopting, with some changes, a plan for the distribution of settlement funds devised by the author), affd, 818 F.2d 179 (2d Cir. 1987), cert. denied, 487 U.S. 1234 (1988). See, e.g., FEDERAL COURTS STUDY COMM., REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 4-10, 109-11 (1990) (highlighting the expansion of the federal court system over the past 40 years due to an overwhelming increase in the number of cases and detailing how the appellate courts have dealt with this increasing caseload); see also In re DES Cases, 789 F. Supp. at 557 (ruling on various procedural issues involved in the DES mass tort litigation); In re Joint E. & S. Dists. Asbestos Litig., 737 F. Supp. at 748 (denying a defendant's motion to disqualify the appointed special master for reasons of impartiality); In re Agent Orange Prod. Liab. Litig., 611 F. Supp. at 1450 (discussing distribution plan for settlement fund and the role of a Special Master in the implementation and scheduling of such a plan); Margaret G. Farrell, The Role of Special Masters in Federal Litigation, C842 A.L.I.-A.B.A. COURSE OF STUDY: CIVIL PRACTICE AND LITIGATION TECHNIQUES IN THE FEDERAL COURTS 931 (1993), available in WESTLAW, ALI-ABA Database (discussing the appointment of Special Masters, their roles, and ethical issues surrounding their use). 2 For a discussion of creative judicial management, see Kenneth R. Feinberg, Response to Deborah Hensler, A Glass Half Full, A Glass Half Empty: The Use of Alternative Dispute Resolution in Mass Personal Injury Litigation, 73 TE, L. REv. 1647 (1995); see also Marc Z. Edell et al., Resolution of Mass Tort Litigation:A Practitioner's Guide to Existing Methods and Emerging Trends, C949 A.L.I.-A.B.A. COURSE OF STUDY: PRODUCTS LIABILITY 37 (1994), available in WESTLAW, ALI-ABA Database (discussing various methods used for managing and resolving mass tort disputes); Deborah R. Hensler, A Glass Half Full, A Glass HalfEmpty:

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