Special Masters: How To Make the Best of Both Worlds, Part XII

Part Twelve: An Adjunct to Civil Litigation

By: Merril Hirsh, James M. Rhodes and Karl Bayer

In Part Eleven, we urged that the more regular the process is of retaining special masters, the most likely it is to achieve its function of holding down costs by heading off disputes. We suggested that we should change our historic practice by making the possible use of special masters more the rule than the exception. So what does that mean?

As so many of our posts have highlighted problems the civil justice system faces, it might be nice to give some credit where credit is due. Over the course of our careers, courts have significantly improved the job they have done both adjusting procedures to handle complex cases and making the mediation portion of alternative dispute resolution (ADR) a basic hallmark of the litigation process.

Years ago, state courts generally placed complex commercial cases into the same wheel with numerous other types of civil litigation. Now, it is common to have specialized dockets for complex cases overseen by judges with specialized experience and procedures.

Also years ago, judges spoke about settlement, but they did so in far more hushed terms. Now, it is an expected part of at least every complex civil case (and, in some courts every civil case) that the attorneys advise their clients on settlements and potentially participate in mediation either under the court’s auspices or privately. Fed. R. Civ. P 16(c)(2)(I) says that, at a pretrial conference “the court may consider and take appropriate action on … settling the case and using special procedures to assist in resolving the dispute when authorized by statute or local rule.” As a practical matter, it is rare (as in pretty much never) in our recent experience in a complex commercial case that the court does not say something about settlement, or inquire about an interest in mediation. Civil litigators know that, if the case survives motions, there is still very little chance the case will actually go to trial, but close to 100% chance that it will go to some sort of settlement conference or mediation.

Civil litigators also know why courts want them to mediate. In July 2006, an article in the Administrative Office of the US Courts’ newsletter, Third Branch News, quoted one federal court clerk as referring to mediation as “Survival. It’s a survival mechanism, a way for us to stay on top of our caseload,… With our caseload and our lack of judgeships, it’s the only way we can handle our workload.”

But Rule 16(c)(2) has other ways to help courts survive that do not get addressed nearly as often. Rule 16(c)(2)(H) says that the court may consider … “referring matters to a magistrate judge or a master,” and Rule 16(c)(2)(P) refers to “facilitating in other ways the just, speedy and inexpensive disposition of the action.”

So why not take the efforts courts have made to identify complex cases and refer them to one type of ADR – mediation/settlement conference – and supplement that with a different type of ADR – the use of a special masters to provide an alternative way of resolving case management issues? Let’s recognize either in an “I know it when I see it” kind of way, or by description (e.g., civil disputes with more than $X in dispute, or involving more than Y parties), that certain types of litigation are likely to benefit from a special master at the outset to perform case management. Flag them at a pretrial conference; convince parties that this is likely to save them time and money; and then make sure it does.

That’s all a pretty tall order for a single blog post. More about how it can work in our next one.

Read Part One: The Problem.

Read Part Two: Improving the Process, Not Just the Rules.

Read Part Three: What Incentives Are We Creating?

Read Part Four: How Do We Create Better Incentives?

Read Part Five: Incentives Through Expertise.

Read Part Six: An Appellate Court Success Story.

Read Part Seven: Being the Neutral Eyes.

Read Part Eight: How Are Special Masters Perceived?

Read Part Nine: Beating the Rap.

Read Part Ten: Using Regularity to Start Beating the Rap

Read Part Eleven: The Rule Rather than the Exception

Read Part Thirteen: Doing Disagreement as Effectively as Doing Agreement

Read Part Fourteen: Is Doesn’t Just Have To Be Construction That’s Constructive

Read Part Fifteen: Where Else Do We Bring Alternative Dispute Resolution Skills to Dispute Resolution?