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

Part Thirteen: Doing Disagreement as Effectively as Doing Agreement

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

In Part Twelve, we suggested harnessing the motivation that has led courts to refer cases to settlement conferences or to insist on private mediation in favor of an alternative – a plan regularly to refer cases sufficiently complex to benefit from active case management for oversight by a special master.

“Oversight” is a wonderfully double-edged sword. Merriam-Webster tells us it means both “watchful and responsible care” and “an inadvertent error or omission.” No wonder people are confused.

So how do we make sure cases are overseen and not just the victim of oversight? We have been talking for some posts about it being a problem that historically the use of special masters has been both ad hoc (call in someone the judge knows only when the occasion warrants) and post hoc (the occasion warrants it when there is already a mess that really needs fixing). If you want to make sure that special masters are not merely people known to the judge and will manage cases in a way that makes the investment in special master fees pale in comparison to the cost savings involved in using them, not only call upon special masters regularly, but call upon them in a regular way.

Maintain rosters of special masters.   Choose them, not behind the scenes, or without a process, but based on applications, resumes, experience with litigation (both good and bad) and screening. Train them to perform case management. Link them with ediscovery expertise so they can apply technology to solve problems, rather than to create them.

Don’t just guess at whether the use of special masters works. Observe special masters’ work and evaluate it. Develop metrics for testing how successful special masters have been.   Do a test project comparing cases litigated with and without special masters to determine whether resolutions are less expensive. Survey participants to obtain feedback on whether processes have worked fairly. Develop working relationships between the bar, the court and the special masters so that the process is both predictable in advance and evaluable in retrospect.

This may seem like a tall order. But, in fact, most of the facilities for doing this already exist. Substitute “mediator” for “special master” and many courts do have rosters; they do have training; they do have observation, evaluation and surveys. These days, most courts have done tremendous work in the effort effectively to do agreement among litigants. Ironically, it is the effort to do disagreement that has lagged behind.

Has this been done? Well, a little. More on that in our next post.

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 Twelve:  An Adjunct to Civil Litigation

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?