Experience with litigation resolves disputes; experience with disputes resolves litigation.

What is a special master?

A special master is a professional hired to assist to resolve disputes in an adjudication. Special masters can perform numerous functions, including managing discovery, in general, or electronic discovery, in particular; adjudicating particular issues; facilitating discussion between or among the parties, or settlement; providing expertise; helping to resolve internecine fights among parties on the same side of a litigation; evaluating specialized issues such as those relevant for class certification, or patent construction; serving as an intermediary to facilitate communications while maintaining the independence of the adjudicator; monitoring; determining damages; claims administration, or almost anything that can require professional assistance to assist resolution. If you would like to learn more about special masters, you might want to read this article.

How are special masters chosen?

Parties sometimes will agree on recommendations for special masters, or courts will select an individual. One of the issues the ABA is considering is whether it would be better to systematize the process of selection by having courts, for example, maintain rosters, vet qualifications and receive feedback.

Who pays for a special master?

Usually the parties split the cost, although sometimes costs can be allocated differently.

Why have a special master?

Because when a special master is used properly, the special master will improve the quality of adjudication. For most purposes, the amount the special master saves the parties should significantly exceed the amount of the special master’s fees. And the special master can improve the process by adapting procedures to the parties’ disputes in a way that courts are not usually free to accomplish. They can also assist courts by freeing up judges and magistrate judges for substantive work on the case, heading off disputes before they occupy judicial resources and keeping cases on track for a fair resolution.

How does a special master differ from a court-appointed expert, a court-appointed arbitrator, or a court-appointed mediator?

A special master refers to a broader category that could possible involve arbitration, independent expertise or mediation in the appropriate case.

How does a special master work with court-appointed experts, court-appointed arbitrators or court-appointed mediators?

It depends on the case. The point is to make the working relationship effective and to avoid delays or expense.

What is an arbitrator?

An arbitrator is someone the parties agree to hire to decide their dispute.

How is an arbitration conducted?

It varies. For the most part, parties are able to craft the proceeding to operate in the way they want. Generally, they can have the arbitration administered by an organization, or retain arbitrators “ad hoc” themselves and have them operate in accordance with rules they agree upon. There are some limitations, however, and there are some specialized arbitrations that follow particular rules and practices.

Can an arbitrator’s decision be appealed?

Usually there are very limited grounds on which an arbitration decision can be appealed. However, to some extent depending upon the applicable law, the parties may be able to provide for some types of appellate review. If you would like to learn more about this issue, read this article.

What are the advantages of arbitration?

Within limits, arbitration allows the parties to craft the dispute resolution system they want. It can be very flexible. It can also be informal, faster, less expensive, and confidential. But achieving these ends requires some care. Poorly-drafted arbitration clauses may not achieve the resolution the parties really want.

What kinds of problems arise from poorly-drafted arbitration clauses?

If not crafted carefully, arbitration procedures may not incentivize the neutral to resolve the case efficiently and may create a situation where substantive errors are effectively unappealable. With some care, those problems can be mitigated or avoided.

What procedures are basic to an arbitration?

Surprisingly few. Arbitrations have many different models. In international arbitration, for example, it is common for all members of the arbitration panel to maintain significant independence from the parties, and ethical rules may well prevent a neutral from agreeing or even suggesting that a party selecting the arbitrator will receive the arbitrator’s vote. At the other extreme, in a labor arbitration, it may well be that management and labor are both represented on the arbitration panel, itself, and there is no expectation of genuine neutrality. Other arbitrations fall within this extreme and all are potentially workable within the rules and customs in which they operate. That does not mean that arbitrations are lawless. They are the subject of agreement and organization, such as the College of Commercial Arbitrators have proposed “best practices.” But it does mean that one size does not fit all. That flexibility is actually a strength of arbitration.

What is mediation?

Mediation is a process by which a neutral facilitates a negotiated resolution by the parties. Unlike an arbitration, mediation does not produce an adjudication on the merits.

How does a mediation differ from a settlement conference?

It depends a bit on who you ask, but part of it is a difference in the goals. Many courts have active settlement programs that are called “mediation.” Often the goal of these programs as a practical matter is to see if the case can be resolved and avoid the burden of adjudication. Although mediation often leads to a total resolution, the goal of mediation is to facilitate the parties’ resolution. It could result, for example, in an agreement on having an adjudication resolve issues, or on procedures to effect that resolution, and not necessarily in a total resolution of the issue. Or it could result in a better understanding of the parties’ needs without an actual agreement and that, too, could be viewed as a positive outcome.

These differences can also make a difference as a practical matter. There is a difference between trying to get parties to settle and trying to facilitate the parties’ negotiation however it leads. And this leads to different styles, as well as different outcomes and experiences for the parties involved.

What are the advantages of mediation?

Mediation allows for an assisted resolution that is achieved by agreement that accounts for the interests of both sides. That may be preferable both because it permits the parties to avoid the risk of an “all or nothing outcome” and because the resolution may include benefits to both sides that would not be available in an adjudication. It can also be less expensive than an adjudication.

Does that mean that a mediated resolution is always better than an adjudication?

There are people who say that, but I do not agree. I believe that each of these processes are tools that are appropriate in particular situations. Often, it is true that a mediated resolution is a better outcome for the parties. But parties are entitled to an adjudication, either as a matter of due process in a court, or a matter of agreement in an arbitration. And sometimes getting a decision is the best result. In addition, mediation is most effective when the prospect of a fair adjudication is meaningful, so the processes work hand-in-hand to some extent.

Being a litigator and counselor helps me to be a better neutral.


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