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MassArb 2.0: From Batches and Bellwethers to MDL-Style Fairness
Recent public commentary has raised alarm bells about mass arbitration protocols being misused by defendants to “delay justice” or “tilt the playing field.” That concern is valid—but it doesn’t apply universally. It would be a mistake to treat all structured arbitration models as procedurally unfair or inherently suspect.
In fact, done right, mass arbitration can preserve access to justice while avoiding the inefficiencies and excessive costs of legacy approaches. At FedArb, we’ve developed an ADR-MDL™ protocol that demonstrates how structure and fairness can—and must—coexist.
Built on Federal Judicial Principles
The ADR-MDL™ process mirrors the multidistrict litigation (MDL) structure long used by federal courts to manage complex disputes with overlapping legal and factual issues. Under this approach, all individual arbitrations are filed, verified, and stayed while a neutral panel of former Article III judges—agreed to by the parties—resolves shared questions of law and discovery.
Only after those common issues are adjudicated do individual arbitrations proceed, if necessary.
This approach ensures consistency, avoids duplication, and reduces costs for all parties. More importantly, it gives claimants access to experienced decision-makers who apply established legal principles in a transparent and reasoned manner.
Eliminating Unconscionability
Some courts have scrutinized mass arbitration procedures—particularly those that stagger or batch cases in ways that delay justice. The Ninth Circuit’s decisions in Heckman and Pandolfi serve as cautionary examples of phased approaches that failed to meet fairness standards.
FedArb’s ADR-MDL™ protocol avoids these pitfalls. Rather than artificially queuing cases, it resolves common issues at the outset—accelerating meaningful adjudication for all parties. Claimants aren’t denied access to arbitration; they benefit from the efficiencies of resolving key legal questions once instead of thousands of times.
Because the process aligns with procedures outlined in the Federal Rules of Civil Procedure, it carries the imprimatur of the federal judiciary. That not only upholds due process—it eliminates credible claims of procedural or substantive unconscionability. Both parties are treated equally, with equal access to discovery, arbitrator selection, and the opportunity to be heard.
Fairness and Efficiency in Practice
FedArb’s ADR-MDL™ approach treats claimants identically and adjudicates their claims on a common evidentiary record. An online filing portal helps manage this volume efficiently. Verified claims are processed at minimal cost, and filing fees are deferred until the merits phase—eliminating the front-loaded cost pressures that have plagued prior mass arbitration efforts, such as those involving DoorDash or Amazon.
Far from discouraging filings, this structure supports access to arbitration by removing financial and procedural obstacles. It is a scalable framework that protects legitimate claims while streamlining resolution.
A Balanced Future
Mass arbitration should not be a battleground for procedural gamesmanship—by either plaintiffs or defendants. FedArb’s ADR-MDL™ model offers a pragmatic alternative rooted in fairness, efficiency, and judicial credibility. It preserves the individualized nature of arbitration while resolving systemic issues transparently.
Courts don’t need to “end” structured protocols, as some commentators suggest. Instead, they should support those that reflect the balance envisioned by the Federal Arbitration Act: processes that are equitable, accessible, and free from both excessive delay and runaway cost.
Done right, mass arbitration is not a weapon of delay—but a path to justice.
Kennen D. Hagen is the president and CEO of FedArb.