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?

Michael L. Rustad, Thomas F. Lambert Jr. Professor of Law at Suffolk University Law School, and Thomas H. Koenig, Professor of Sociology and Anthropology at Northeastern University, recently published “Fundamentally Unfair: An Empirical Analysis of Social Media Arbitration Clauses,” Case Western Reserve Law Review, Vol. 65, p. 341, 2014; Suffolk University Law School Research Paper No. 15-18.

S.I. Strong, Associate Professor of Law and Senior Fellow, Center for the Study of Dispute Resolution at the University of Missouri School of Law, has published, “Use and Perception of International Commercial Mediation and Conciliation: An Empirical Study,” 21 Harvard Negotiation Law Review (2015), Forthcoming; University of Missouri School of Law Legal Studies Research Paper No. 2015-07.

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 front to perform active case management).