In Part Fourteen, we discussed a program in California state courts that makes regular use of special masters in construction cases. So who else is making regular use of alternate dispute resolution talent?

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In Part Thirteen, we discussed ways of institutionalizing the use of special masters by maintaining rosters, choosing them based on qualifications and experience, training them and evaluating their effectiveness. We closed by raising the question – has this been done before?

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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.

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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?

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In Parts Nine and Ten, we discussed how there is a rap on using special masters that stems the way in which special masters are selected and used. As we discussed, currently, when judges bring special masters into cases it is generally both ad hoc (specific to the case, and chosen based on virtually no standardized criteria) and post hoc (often to deal with messy disputes after they have arisen and potentially become intractable, instead of up fr

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In Part Nine, we discussed the rap on special masters – the concern that special masters can be expensive and potentially ineffective; prone to an alternative agenda; and chosen because of connections to the judge. We suggested that the fact that at least the federal rules include no regularized method of selection or apparent qualification for the job of special master does not help to beat that rap. So what would help?

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In Part Eight, we talked about how, notwithstanding all the apparent benefits special masters can have for civil litigation, there is a rap, rightly or wrongly, on special masters that they can be (1) expensive and potentially ineffective if they merely add another layer of decision-making to challenge; (2) prone to alternate agenda; and (3) chosen because of connections to the judge, rather than management skills or independence. Yet, here we ar

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We’ve now spent several posts extolling the virtues of using special masters in such fervent tones that the invention of sliced bread has begun to pale by comparison. So why aren’t people using special masters on a routine basis to obtain these terrific benefits?

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In the past few posts, we have been discussing how special masters can be part of making resolutions of disputes fair, just and efficient. Part IV focused on using special masters as hands-on managers to incentivize parties to avoid discovery disputes in the first place and to resolve discovery disputes quickly, fairly and with a minimum of expense when they do occur.

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In Part Four we began to discuss solutions (not just problems), and urged that a first step in incentivizing counsel to hold down litigation costs is to have a neutral oversee the process of discovery closely enough (1) to make it in counsel’s interest to act reason­ably in the first place; and (2) to rule on unreasonable demands or failures to respond to discovery quickly, so that they gain no tactical advantage.

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