Alternative courts? Litigation-induced claims resolution facilities.

The contemporary fixation on tort lawsuits in the public policy arena and in the popular media obscures an important development in litigation: with the decline of trial rates and the rise of alternative dispute resolution (ADR), the bulk of civil litigation is vanishing from public view. One place disputes are going is into "claims resolution facilities," privately designed, financed, and administered organizations for giving away money, established as a result of the settlement of mass litigation in trial or bankruptcy courts. The substantive and procedural rules applied by these facilities for resolving claims are usually known only to the small number of lawyers who participated in negotiating the agreements that established the facilities, the administrators of the facilities, and the facilities' overseers, and they have so far largely escaped the scrutiny of legal scholars. The increasing resort to private claims resolution facilities to determine the eligibility for and amount of compensation for civil plaintiffs raises efficiency, equity, and due process questions that deserve broad public policy attention. But the necessary data to support reasoned public policy debate about the proper uses of such facilities are generally unavailable and likely to remain so for the foreseeable future.

It is a truism that civil disputes have long been resolved in myriad ways. Notwithstanding legal scholars' focus on trial courts, disputes both large and small are resolved in diverse settings, including legislatively authorized administrative tribunals and specialized courts as well as informal dispute resolution programs. (1) Numerous state and federal agencies dispense social welfare benefits and compensation to special categories of claimants, some broad and some narrow. (2) Claims resolution facilities, as defined here, are distinguished from such administrative tribunals and social welfare and other public compensation programs by the fact that they are private entities; their rules are not subject to broad public debate, and their outcomes are often protected from public scrutiny. (3)

The expansion of securities and consumer class actions, most of which end in settlements that call for disbursing small amounts of money to large numbers of class members, has created a need for administrative processes to determine eligibility for and the amount of disbursements. Most such settlements specify relatively straightforward formulae for arriving at these determinations, which can be applied in routine bureaucratic fashion. (4) Not surprisingly, the private market has responded to the demand for such services, which are provided by a small number of firms that specialize in class action settlement claims processing. (5) Claims resolution facilities, as defined here, are distinguished from such firms by the fact that they are special purpose ("one-off") entities, designed by the parties to a litigation to deliver funds only to those whose interests were compromised under the settlement of a particular litigation.

Examples of claims resolution facilities that fit my definition are the Dalkon Shield Claimants' Trust, established as a consequence of Chapter 11 reorganization to pay claims of women with intrauterine devices manufactured by A.H. Robins; (6) the Manville Personal Injury Trust, established as a consequence of Chapter 11 reorganization to pay asbestos victims, chiefly workers, who were exposed on the job to asbestos manufactured by the Manville Corporation; (7) the Dow Corning Silicone Gel Implant Trust, established as a result of Chapter 11 reorganization to pay people with silicone gel implants manufactured by Dow Corning or with raw material manufactured by Dow Corning; (8) the Polybutylene (PB) Pipes facility, established by a settlement of class action litigation to pay property damage claims of people whose properties were damaged by leaky PB pipes; (9) and the Prudential claims facility, established by a settlement of class action litigation to pay claims of Prudential's customers that they had been fraudulently induced to purchase certain financial instruments. (10) To my knowledge, no one has attempted to count the number of such claims resolution facilities that have been established over the past decade, the total number of claims that have been submitted to these facilities, the amounts of money that have been paid out in total, or the total amount of money that has been spent to administer these facilities. Given the number of high profile mass property damage, personal injury, and financial torts that have resulted in the establishment of such facilities, they likely number in the dozens and have paid out billions of dollars in compensation and expenses.

As the number of such facilities increases, it seems reasonable to ask whether it would not be more efficient to create a single administrative entity, or perhaps a few different sorts of entities, to deliver compensation. By centralizing claims resolution, rather than assigning the responsibility to myriad stand-alone entities, each of which is built from the bottom up, it seems as if it ought to be possible to realize economies of scale, increase the slope of the learning curve, and avoid past mistakes. Assigning mass tort claims resolution to one or a few entities also might draw more attention to the claims resolution facility phenomenon and provoke broader debate about the proper design of such facilities. But to date, there has only been a bit of movement in this direction, pertaining to the asbestos bankruptcies. (11)

It is tempting to think that the failure to centralize claims resolution facilities is a product of the self-serving incentives of program designers. But I suspect the truth is more complicated. The designers of any compensation program face (at least) twelve key decisions:

(1) What are the criteria for obtaining compensation for the program? For example, will asbestos personal injury trusts created under a Chapter 11 reorganization plan pay only individuals who show evidence of mesothelioma and other cancers associated with asbestos exposure, or will the trust pay claimants with nondisabling, noncancerous claims as well?

(2) What evidence is required to demonstrate eligibility under the chosen eligibility requirements? For example, would the Dalkon Shield Claimants' Trust pay women who were unable to produce medical records showing that they had been fitted with a Dalkon Shield in the past?

(3) How should claims be valued? For reasons of efficiency and equity, all claims might be valued alike. Alternatively, compensation may be distributed proportionately, according to the severity of injury, magnitude of property damage, or financial loss; or according to the litigation value of the claims, which may reflect values other than loss, such as the claimant's age, reasons for using a product, or the quality of legal representation.

(4) What evidence is required to support the valuation of claims? For example, what documents do women need to produce in order to receive compensation for breast implant explantation?

(5) How individualized will the process of determining eligibility and compensation amount be? If each individual claimant is accorded an opportunity to meet with a representative of the claims resolution facility to press her case, then the rules for determining eligibility and value may be more nuanced and the evidentiary requirements more flexible than they will be if each claim is to be processed mechanically, either by low-level staff or computer.

(6) Assuming that the process of eligibility and valuation is not wholly mechanical, what procedures should be provided to claimants for pressing their claims? For example, the Dalkon Shield Claimants' Trust provided an ADR mechanism for claimants who were dissatisfied with the trust's first offer.

(7) What opportunities should there be for appeal within the program? For example, the Dow Corning trust provides for automatic review of denials of claims. In contrast, the Revised Settlement Program, established to pay silicone gel implant claims against other implant manufacturers, penalized claimants who appealed unsuccessfully by reducing the amount of compensation that they were to receive by twenty-five percent.

(8) What opportunities should there be for exit to the litigation system? The settlement of future asbestos claims against the Center for Claims Resolution, which was rejected by the U.S. Supreme Court in Amchem Products v. Windsor, (12) provided for dissatisfied claimants to sue the claims resolution facility, albeit with restrictions on the numbers of claimants who could pursue this option annually and limitations on damages.

(9) What provisions will be made for claimant representation? Both the Manville Personal Injury Trust and the Dow Corning trust place restrictions on the amount of fees attorneys may charge claimants, but no other restrictions on attorney representation. The Dalkon Shield Claimants' Trust and Dow Corning trust both provide free advice to claimants without lawyers.

(10) What will be the life of the facility? Where long-latency diseases are involved or where the long-term effects of the use of a pharmaceutical product are unknown, but the settlement agreement extinguishes all future legal claims, the length of a facility's operation takes the place of a statute of repose.

(11) Will the fund that supports the facility be capped, meaning that if the number of claimants against the fund proves greater than anticipated, payments will be ratcheted down to preserve the fund's ability to pay something to everyone who is eligible, or will the funders pay the cumulative amount resulting from all claims, whatever that totals?

(12) If there is more than one entity responsible for funding the facility, how will the funding be apportioned among them?

As discussed in Francis McGovern's article for this Symposium, there are many possible answers to each of these questions, yielding a dizzying array of potential claims resolution facility designs. (13) Nor do these broad questions capture the detailed decisions necessary to design claims resolution procedures. (14) Without systematic data collection on the variety of designs that have been adopted, the reasons why facility designers have preferred some designs over others, and the outcomes for claimants and funders of different design decisions, convergence on certain designs depends on the involvement of repeat players in the design process, whose intuitive preferences may not reflect the real consequences of design decisions.

But even if we had done a better job over the past decade trying to learn from the experiences of previous claims resolution facilities, it is not likely that today's claims resolution facility designers would converge on just a few ideal models for giving away money. Although, as McGovern notes, the choices among design options often implicate trade-offs between efficiency and equity or procedural fairness, they also produce winners and losers in the instant litigation. For example, the Dow Corning Chapter 11 reorganization plan provides up to $2.35 billion (net present value) for women seeking compensation for explantation and physical injury resulting from their implants but caps the funds available for women with systemic disease claims (e.g., autoimmune disease) at $400 million (net present value). The procedures for claiming compensation for explantation and physical injury are streamlined, while the procedures for claiming compensation for disease depend on the outcome of court proceedings. The committee that negotiated the final Dow Coming Chapter 11 reorganization plan on behalf of tort claimant creditors agreed to this set of trade-offs in large part because they recognized that the scientific evidence on the causal relation between silicone exposure and disease that had accumulated by the time that the reorganization plan was finalized had substantially diminished the litigation value of implantees' disease claims. (15) But some women with Dow Corning breast implants felt that they had been sold down the river.

The resolution of competing claims for compensation and procedural attention depends on who is at the negotiating table, which means that categories of claimants who are represented by lawyers who have a good deal at stake in the outcomes of the claims resolution design process--because they will receive a fraction of the claims value in fees--are likely to do better than categories of claimants who are unrepresented or whose lawyers are edged out of the process by legal maneuvering. (16) Whether the outcomes of the negotiation are subject to review and by whom depends, in part, on whether the substantive and procedural rules for compensating claims are decided while the outcome of the litigation that gives rise to the facility is still uncertain. The settlement protocol, mediation rules, and other key details of the Dalkon Shield claims resolution facility were decided after the tort creditor claimants voted to accept the Chapter 11 reorganization plan. Although the litigation expansion that created the risk exposure that drove Robins to petition for Chapter 11 reorganization depended critically on mass tort plaintiff attorneys, the Dalkon Shield trustees rejected the settlement protocol by using the values that had been placed on litigated claims to value claims in bankruptcy on the ground that recoveries in litigation "had less to do with the merits than one would hope or expect." (17) Opining that claimants had been "victimized by the legal process and by lawyers both before and during the bankruptcy process," (18) the Dalkon Shield trustees favored claims resolution procedures that diminished or eliminated lawyers. Operating in the shadow of the experience of the first Manville Trust, which had expended the funds that were anticipated to pay all future claims in its first year and a half of operations, (19) and fearing a similar run on the Dalkon Shield Claimants' Trust fund, Judge Mehrige gave short shrift to claimants' attorneys' objections to the procedural regime that the trustees adopted. In contrast, the operational details of the Dow Corning trust were contained in the settlement agreement and voluminous annexes thereto that were incorporated in the final Chapter 11 reorganization plan that was reviewed by the bankruptcy judge and sustained, in the face of objections, by the district and appellate courts. Process, of course, has costs. The Dalkon Shield trust began paying certain claimants within a year after Judge Mehrige confirmed the reorganization plan; (20) in contrast, the Dow Corning trust did not begin paying claimants until five years after its approval by the bankruptcy court.

Caught somewhere between public adjudication and private settlement, between administrative agencies and dispute resolution--a veritable chimera--claims resolution facilities have not generated much case law regarding either design or implementation. Unlike congressionally authorized compensation programs, claims resolution rules are not subject to the public review and comment process mandated by the Administrative Procedures Act. Judges who review class action settlements under Rule 23 of the Federal Rules of Civil Procedure to determine whether the settlements are "fair, reasonable, and adequate" have a wealth of trial and appellate court decisions to turn to for guidance. But Rule 23 makes no mention of procedures for paying class members once a case is settled, and the word "claims administrator" appears in but a few sentences in the most recent Manual for Complex Litigation. Nor is there any mention of claims resolution facilities in the bankruptcy statute. Although civil procedure scholars and legal ethicists have written extensively about the potential for abuse in class action settlements, (21) legal scholars have not delved deeply into the rules that govern claims resolution facilities or how those rules are implemented. Scholars might usefully inquire into a number of questions:

(1) What concepts of distributive justice are appropriate in allocating compensation when the availability of compensation was the product of litigation? The chairperson of the Dalkon Shield trust has argued that the trust adopted a nonadversarial paradigm for allocating compensation out of a desire to treat all claimants equally, "focusing on the best interests of claimants collectively," without regard to the strength of their legal claim, which might have depended on whether claimants were represented, had filed in certain jurisdictions, or were better witnesses than other claimants. (22) This collective notion of distributive justice contrasts sharply with the meritocratic principles that underlie tort compensation. (23)

(2) How much procedural due process should be afforded claimants by different facilities? Some claims resolution facilities promise claimants access to ADR. But just what procedures are offered to claimants under the ADR rubric and the extent to which these procedures, in practice, accord with widespread understandings of differences between such procedures as mediation and arbitration is unclear. For example, the Dalkon Shield trust's ADR program relied exclusively on arbitration, a procedure that typically flees third-party neutrals to make whatever decisions they find appropriate. But in the "fast-track" part of the trust's ADR program, to which claimants who were unhappy with the amounts offered in settlement could volunteer to submit their claims, arbitrators' awards were capped, by the trust, at $10,000. (24) The trust seems to have seen the arbitration process as a mechanism for satisfying claimants' expressive needs to "tell their story" in circumstances in which the trust had already decided that the claimants could not prove they were injured by the Dalkon Shield. (25) If the promise of access to ADR encourages tort claimant creditors to vote for reorganization plans or discourages settlement class members from opting out of a settlement, judges who must approve these plans and settlements ought to know more about what such procedures actually offer claimants and, in particular, how to recognize the indicia of fair and efficient ADR procedures.

(3) The valuation of claims that is central to arriving at a class settlement or bankruptcy reorganization is inherently uncertain. More claimants may come forward than anticipated, the distribution of claim values may be different than projected, and even well-managed funds may suffer financial reversals. How have claims resolution plans provided for these uncertainties, with what consequences? What has been and should be the role of the court in determining responses to changes in the environment of claims resolution facilities?

(4) How do the interpretation and application of the provisions of settlement and bankruptcy plans change over time? Many claims resolution facilities have lifetimes of a decade or more. Over time, new trustees may substitute for the original trustees, and facility administrators may come and go; in some instances of long-running litigation, such as asbestos, the power balance between parties with interests in the facility--e.g., different categories of claimants--may change, reflecting changes in the balance of interests outside the facility. How can plans be drafted to constrain changes in facility rules and implementation that violate the intent of the plans that judges approved? What changes, if any, should require return to the court for judicial approval?

(5) Should claims resolution facilities be required to meet any requirements for decisional transparency? The Dalkon Shield trust rejected claimants' lawyers' requests to share information about the trust's claims assessment protocol, apparently out of a fear that the lawyers would attempt to "game the system" and out of a belief that not sharing information would promote settlement. (26) As a result, lawyers for plaintiffs whose claims were liquidated in the bankruptcy had less information available for shaping their legal strategies than is typically available for litigated cases (27)--an outcome that assumedly was not anticipated at the time claimants were asked to vote on the reorganization plan.

(6) What information about claims resolution facilities' operations, expenses, and payments to claimants ought to be available to the public? Many claims resolution facilities report little information about their operations and resist providing information about the amounts of money paid out to different categories of claimants, data that are essential for assessing the equity and efficiency of the facilities. Although outcomes of settled cases also are not generally available from court records, researchers have identified litigants from court records and interviewed them about their experiences in the litigation process, their views of procedural fairness, and, except in cases where litigants are subject to secrecy agreements, the outcomes they obtained and their assessment of these outcomes. The hundreds of thousands of claimants whose claims have been resolved in claims resolution facilities are inaccessible to researchers.

(7) Do the experiences of congressionally authorized compensation programs, such as the Black Lung program, the Vaccine Compensation Fund, and the September 11th Victim Compensation Fund, offer any lessons for the design and implementation of litigation-induced claims resolution facilities and, conversely, does the experience of long-running claims resolution facilities, such as the Manville Personal Injury Trust, offer any lessons that congressional staff ought to give heed to when drafting legislation that mandates new compensation programs? Some congressionally authorized compensation programs, such as the Vaccine Compensation Fund, substitute no-fault compensation for litigation for a defined class of potential legal claims; in contrast, litigation-induced claims facilities are established to resolve a pending litigation in trial or bankruptcy courts. When the government foots the bill for compensation funds, the amount of compensation available is usually capped by the amount appropriated by Congress; (28) in contrast, the amount of compensation available to litigation-induced claims resolution facilities is negotiated by the parties to the litigation. Nonetheless, there may be microlevel lessons to be learned even from the operations of programs that are quite different at the macrolevel. For example, Special Master Kenneth Feinberg noted at this Symposium that through his experiences responding to the families of victims of the September 11th attacks, he was convinced of the importance of process in resolving mass claims, something he said he had been skeptical about previously--presumably alluding to his role in designing mass tort settlements of other cases.

Fifteen years ago, at a conference on claims resolution facilities held at Duke Law School, I laid out an agenda for research on claims resolution facilities. (29) But today we know little more about claims resolution facilities than we did in 1990. The Manville Personal Injury Trust data have been shared with researchers over the past several years for use in analyses of trends in asbestos claiming patterns, (30) which in turn have helped to shape congressional asbestos litigation reform efforts. The Dalkon Shield trust data are now on deposit at the University of Virginia but have yet to be mined to answer the sorts of questions I have outlined above. As the number, variety, and complexity of claims resolution facilities continues to increase, the need to know more about the consequences of resorting to them to deliver compensation has likewise increased. It is time to get serious about understanding the role claims resolution facilities are playing in the delivery of civil justice in the United States.

(1.) See Judith Resnik, Housekeeping: The Nature and Allocation of Work in Federal Trial Courts, 24 GA. L. REV. 909 (1990) (describing the distribution of the federal adjudicative workload among courts and administrative tribunals).

(2.) See Michele Landis Dauber, The War of 1812, September 11th, and the Politics of Compensation, 53 DEPAUL L. REV. 289 (2003) (discussing the history of federal disaster relief programs); Robert L. Rabin, The September 11th Victim Compensation Fund: A Circumscribed Response or an Auspicious Model?, 53 DEPAUL L. REV. 769 (2003) (describing administrative programs that compensate victims of terrorist attacks); Robert L. Rabin, Some Thoughts on the Efficacy of a Mass Toxics Administrative Compensation Scheme, 52 MD. L. REV. 951 (1993) (discussing no-fault administrative programs for mass tort injuries).

(3.) In contrast, the Air Transportation Safety and System Stabilization Act that established the September 11th Victim Compensation Program, see Pub. L. No. 107-42, [subsection] 404(a)(2), 407, 115 Stat. 230, 237-38, 240 (2001), required the special master to direct the program to promulgate proposed rules for review and comment. More than ten thousand comments on the proposal were received by the program and posted on its public website. See Deborah R. Hensler, Money Talks: Searching for Justice Through Compensation for Personal Injury and Death, 53 DEPAUL L. REV. 417, 438 (2003). Special Master Kenneth Feinberg recently issued a report on the program's operations and outcomes. KENNETH FEINBERG, U.S. DEP'T OF JUSTICE, FINAL REPORT OF THE SPECIAL MASTER FOR THE SEPTEMBER 11TH VICTIM COMPENSATION FUND OF 2001 (2004). Feinberg also made numerous public appearances and gave many press interviews describing the September 11th program's goals and approach. Hensler, supra, at 436-37.

(4.) See DEBORAH R. HENSLER ET AL., CLASS ACTION DILEMMAS: PURSUING PUBLIC GOALS FOR PRIVATE GAIN (2000), available at http://www.rand.org/publications/MR/MR969.

(5.) For example, Boston Financial Services, Inc., recently established a "class action business line," after serving for many years as a claims administrator on "a project basis." Press Release, Boston Fin. Data Servs., Inc., Boston Financial Data Services, Inc. Announces Class Action Administration Services (May 17, 2004), at http://www.dstsystems.com/in/pr_classaction.htm. Another firm, Rust Consulting, reports that it has administered settlements of more than four hundred class actions. Rust Consulting, Welcome, at http://www.rustconsulting.com (last visited Mar. 18, 2005); see also Garden City Group, Legal Administration Services, at http://www.gardencitygroup.com (last visited Mar. 18, 2005). The Garden City Group is a division of Crawford & Company, which provides worldwide insurance claims administration services.

(6.) See Georgene M. Vairo, The Dalkon Shield Claimants Trust: Paradigm Lost (or Found)?, 61 FORDHAM L. REV. 617 (1992).

(7.) See STEPHEN CARROLL ET AL., ASBESTOS LITIGATION COSTS AND COMPENSATION: AN INTERIM REPORT (2002), available at http://www.rand.org/publications/DB/DB397/ DB397.pdf.

(8.) See Georgene Vairo, Mass Torts Bankruptcies: The Who, The Why, and the How, 78 AM. BANKR. L.J. 93 (2004).

(9.) See HENSLER ET AL., supra note 4.

(10.) See In re Prudential Ins. Co. of Am. Sales Practices Litig., 962 F. Supp. 450 (D.N.J. 1997), aff'd in part sub nom. Krell v. Prudential Ins. Co. of Am., 148 F.3d 283 (3d Cir. 1998).

(11.) One example is the Claims Resolution Management Corporation (CRMC), which was established under the trust's leadership to process asbestos bankruptcy trust claims. Claims Resolution Mgmt. Corp., Welcome, at http://www.claimsres.com (last updated June 10, 2004).

(12.) 521 U.S. 591 (1997).

(13.) Francis E. McGovern, The What and Why of Claims Resolution Facilities, 57 STAN. L. REV. 1361 (2005). Of course, the actual number of designs is fewer than all mathematically possible combinations. For example, providing highly personalized claims resolution to tens of thousands of claimants annually would decrease significantly the amount of money available to compensate claimants; as a result, most mass litigation settlements adopt "matrices" (n-dimensional tables of claim or claimant characteristics) for assigning values to claims of all or a majority of claimants.

(14.) On procedural design of compensation programs, see Janet Cooper Alexander, Procedural Design and Terror Victim Compensation, 53 DEPAUL L. REV. 627 (2003).

(15.) See MARCIA ANGELL, SCIENCE ON TRIAL: THE CLASH OF MEDICAL EVIDENCE AND THE LAW IN THE BREAST IMPLANT CASE (1997).

(16.) See, e.g., Mark Plevin et al., Pre-packaged Asbestos Bankruptcies. A Flawed Solution, 44 S. TEX. L. REV. 883 (2003) (describing how the inclusion of some plaintiff lawyers and the exclusion of others from negotiations shaped Chapter 11 reorganization plans in asbestos bankruptcies).

(17.) Vairo, supra note 6, at 618.

(18.) Id. at 619.

(19.) See CARROLL ET AL., supra note 7.

(20.) See Vairo, supra note 6.

(21.) See, e.g., Roger Cramton, Individualized Justice, Mass Torts, and 'Settlement Class Actions': An Introduction, 80 CORNELL L. REV. 811 (1995); Susan Koniak, Feasting While the Widow Weeps: Georgine v. Amchem Products, Inc., 80 CORNELL L. REV. 1045 (1995).

(22.) Vairo, supra note 6, at 638.

(23.) See Hensler, supra note 3 (describing experimental research and comments on the September 11th Victim Compensation Fund that reflect three different definitions of distributive justice). The Dalkon Shield Claimants' Trust seems to me to have applied its equality principle rather narrowly--for example, denying even rather modest compensation to women who claimed injuries but could not produce medical records that they had used the Dalkon Shield intrauterine device, although the devices had been fitted many years ago, often in circumstances that made it difficult for women to obtain the records the facility required. Notwithstanding its claims that it favored nonadversarial procedures, the trust has been described as adopting an adversarial posture whenever its settlement offers were declined by claimants. See Carrie Menkel-Meadow, Taking the Mass Out of Mass Torts: Reflections of a Dalkon Shield Arbitrator on Alternative Dispute Resolution, Judging, Neutrality, Gender, and Process, 31 LOY. L.A. L. REV. 513 (1998).

(24.) Vairo, supra note 6, at 645-46; see also Menkel-Meadow, supra note 23. Menkel-Meadow, who arbitrated cases for the trust, says that the trust's ADR process was misnamed:

   As used in the Trust rules, ADR was simply a faster, even less
   formal, form of arbitration.... There was no mediation, negotiation,
   or further attempt to engage in conversation with the Trust
   representatives. If a claimant rejected a settlement offer and
   proceeded to ADR, she was electing an adversarial trial-like
   hearing.... The claims representatives had absolutely no authority
   to ... 'talk' to the claimants.

Id. at 519. The Dalkon Shield trust's definition of a settlement conference was also atypical. Normally, at a settlement conference, plaintiffs and defendants, or their representatives, attempt to reach a compromise on claim value with the help of a judge or other third-party neutral. According to the Dalkon Shield trust's procedural rules, there was no bargaining at the settlement conference; the trust representative made a "best and final offer." Vairo, supra note 6, at 642-43.

(25.) The procedural justice research that provides a theoretical and empirical basis for the assertion that legal disputants value an opportunity to "tell their story" mainly investigates procedures in which disputants accurately anticipate that what transpires during the process will influence the outcome of their dispute. See Deborah R. Hensler, Suppose It's Not True: Challenging Mediation Ideology, 2002 J. DISP. RESOL. 81 (reviewing procedural justice research). However, some experimental data does suggest that people value the opportunity to participate in a decisionmaking process even when they are told that the actual decision will be made outside the process in which they participate. Id.

(26.) Vairo, supra note 6, at 653 (reporting that the Dalkon Shield trust "will not provide claimants, or their lawyers, with a roadmap as to how claims are evaluated").

(27.) Many private firms collect and report information on jury verdicts in civil damage cases, along with information about the characteristics of these cases; this information is used by plaintiff and defense lawyers to estimate trial and settlement values of their cases.

(28.) As Special Master Kenneth Feinberg noted at this Symposium, Congress provided a blank check for the September 11th Victim Compensation Fund.

(29.) Deborah R. Hensler, Assessing Claims Resolution Facilities: What We Need to Know, LAW & CONTEMP. PROBS., Autumn 1990, at 175.

(30.) See, e.g., CARROLL ET AL., supra note 7.

Deborah R. Hensler *

* Judge John W. Ford Professor of Dispute Resolution, Stanford Law School. I have not participated in the design or operation of any of the trusts I discuss in this Article. However, I have served as an expert in attorney fee proceedings in the Dow Corning silicone gel Chapter 11 reorganization.