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

Part Eight: How Are Special Masters Perceived?

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

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? Way back in Part One of these series we noted that, rightly or wrongly, the rap on arbitration for some time has been that (1) although it should be less expensive than litigation, in practice, it is not; and (2) there is a risk of having a decisionmaker get it wrong without the meaningful possibility of appeal.  So what is the “rap” on special masters?

From our experience, our review of the (somewhat limited) literature and our discussions with ADR professionals, a few issues seem to get mentioned the most. One is that special masters, too, can be expensive – especially if the special master ends up not so much controlling the cost of the litigation, but adding an additional layer of review in the form of reports and recommendations destined for Court decision anyway. Another is the fear special masters may come in with their own agendas that may get imposed on the parties. A third concern can perhaps be called two sides of the same coin: judges who may be concerned about losing control over the litigation process tend to choose special masters whom they know personally; litigants, however, may be concerned that special masters may not be chosen for their skills at case management or will lack independence. To some, the prospect and perception of litigating in front of the judge’s friend, may be scarier than litigating in front of the judge.

Sometimes these types of concerns take the form of relatively private grumbling. Although lawyers, as a group, are not particularly shy, they do sometimes learn to be circumspect when it comes to public attacks on a decisionmaker, especially one perceived to be close to the judge. But sometimes these types of concerns get aired publicly.

For example, a recent editorial in the Wall Street Journal picked up statements in a disqualification motion to attack the court-appointed monitor overseeing Apple’s compliance with an injunction in a price-fixing case. The editorial asserted that the monitor lacked the appropriate experience, has political connections with the judge, overcharges, and went beyond his role by collaborating with federal prosecutors and state attorneys general.

We know nothing about the monitor or the facts and would not purport to weigh in on them. But regardless of whether Apple’s filings or the editorial are right or wrong, even the perception that they may be right should concern us if we are advocating for expanded use of special masters. Put another way, like every part of the dispute resolution process, it needs to be both fair and perceived as fair.

OK, so how do we deal with this “rap” on special masters? Stay tuned for Part IX, as we begin to discuss what can be done about it.

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 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 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?