The Special Master: A Mediator Wearing Many Hats

The Special Master: A Mediator Wearing Many Hats

The Special Master: A Mediator Wearing Many Hats

The more complex our society becomes, the more complicated its litigation grows. By 2018, one-half of the federal docket was consumed by multi-district litigation — multiple cases concerning the same subject spread across the country. Add to that mass-tort litigation, class actions, products liability cases, multiparty construction litigation, and the flood of “normal” civil and criminal cases, and it’s clear our judiciary needs help. One source of that help is special masters appointed under Federal Rules of Civil Procedure 53.

A special master is appointed to oversee aspects of litigation consume too much of a court’s resources. They may be appointed.at any time. Special masters frequently craft innovative Solutions to seemingly intractable problems

Special masters may be appointed in a wide variety of cases. In a clogged court system where backlogs are routine, they may be assigned to handle pretrial matters simply so the court has time for other cases. Where the action concerns construction defects, a special master often handles voluminous and contentious discovery motions. He or she can also facilitate a global settlement between the parties. In dissolution cases, special masters make recommendations regarding child custody, visitation, and the division of property. Some cases involving special masters will take years or even decades to litigate, as in airplane crashes, oil spills, or superfund litigation The longest serving master is Walter Armstrong appointed by the U.S. Supreme Court. He served for almost 23 years from 1969 to 1991 in a case involving determination the boundaries of Alabama, Louisiana, and Mississippi.

Special masters are often appointed to monitor compliance with an injunction and serve for a very long time. Representative cases include water allocation, hazardous-waste cleanup, and reform of public institutions that have violated Constitutional standards (for example, school systems,, state prisons, and state mental-health institutions)

Special masters often use mediation skills in cases involving public agencies and resources, but they are not always asked to mediate. Mediation is not mentioned in Rule 53, though of course it may be consented to by the parties or encompassed within pretrial or post rial proceedings entrusted to the special master by the order of reference outlining the special master’s duties, powers and compensation.

Professor Lawrence Susskind is a former special master. He has described several types of cases where a special master might be asked to mediate:

  1. When the master possesses specialized expertise and can resolve technical or financial issues that would otherwise be too difficult for the court to address.
  2. When rapid resolution will halt continued appeals;
  3. When narrowing the range of issues can save the court’s resources, especially if the case threatens to turn on confusing and technical expert testimony, and
  4. When the parties need help in generating new ideas to make out-of-court settlement possible.

Susskind considers it critical that the courts understand the best mediators are not always attorneys. Trained in an adversarial and competitive mindset, not all attorneys will possess mediation skills. They may be unfamiliar with the techniques of consensus-building or integrative bargaining — skills a trained mediator has. Multi-party public disputes, with their myriad stakeholders and conflicts of interest, demand even greater skills of a mediator.

Not all special masters are legally trained. Many are selected by the court based on the substantive expertise deemed necessary to resolve the case. A special master might be an accountant, urban planner, environmental scientist, or former public administrator. Sometimes, a special master may be selected because he or she has skills in dispute resolution.

Veteran Honolulu-based special master Peter Adler thinks it vitally important that everyone involved in a case know exactly what mediation is, and that the master pursue not only legal alternatives, but business, personal, and practical options to resolve the matter as well. He also says the special master must help “choreograph” the role of the court with the mediation process as a way to ultimately move the case toward resolution

The many roles of the special master

A special master may play many overlapping, and sometimes-conflicting roles, such as temporary judge, mediator negotiator, subject matter expert, and court representative. The special master’s task is a burdensome one when such multiple roles are required.

Interpersonal skills are critical to a successful tenure as a special master. Perhaps the most prolific in this role is Duke University law professor Francis McGovern, who has served as a court-appointed expert or special master in mass personal injury cases involving asbestos in Ohio and Texas, DDT in Alabama, the Dalkon Shield. McGovern is known for his knowledge of dispute resolution theory and practice. He emphasizes the importance of the “right chemistry” to a successful process.

Environmental health scientist and mediator David B. Keller pioneered the use of special masters to oversee cleanup of hazardous waste sites in 1993, when he was appointed in California. Emphasizing the need to reconcile often contrary duties. Keller describes himself as “walking a tightrope among many conflicting roles…”, during his successful four- year effort to reach an out-of-court settlement of the case. He says of his role:

“It was critical to balance the tensions between a negotiator’s skill for assertiveness with a mediator’s skill for empathy, and the tensions between impartial scientist and court advocate. The crux of such matters is the ability to play multiple, overlapping, and even conflicting roles, without betraying confidence or creating confusion among the various parties and the court.”

Post-trial, special masters are most commonly appointed in institutional reform cases. J. Michael Keating, a prominent special master in this area. He has been appointed in cases involving low-income housing and special education in Rhode Island, and prison reform in Texas, California, Rhode Island, Massachusetts, and Georgia. Such cases receive a great deal of media and political attention. Legislative changes and additional budget appropriations are necessary at the state level to affect the reforms ordered by the court. According to Keating, the key to success for the special master is the interweaving of traditional mediation skills with the implied coercive power of the court

Recommendations

  1. Ideally, attorneys and parties will have an opportunity to suggest candidates for special master the court desires. The parties can also recommend to the judge that a special master be appointed. The court and the parties should be clear on what expertise they need from the special master.
  2. The parties and their counsel should work with the judge and the special master to draft the order of reference. Ensure that the order includes appropriate details regarding (a) the responsibilities and authority of the special master; (b) the hierarchy of decision making c) ground rules of communication (verbal and written), including confidentiality and informal communications between the special master and the court, and the parties; (d) the frequency and distribution of written reports; (e) mediation (f) how disputes will be handled between the special master and the . The parties and their counsel should work with the judge and the special master in crafting the order of reference. Ensure that the order includes appropriate details pertaining to (a) the responsibilities and authority of the special master; (b) the hierarchy of decision making (special master vis-a-vis the judge); (c) ground rules of communication (verbal and written), including confidentiality and informal communications between the special master and the court, and the special master and the parties; (d) frequency and distribution of written reports (e) mediation of other dispute resolution (f) how to address disputes between the special master and the parties; and (g) provisions for hiring and appointing of additional experts and staff.
  3. Ensure the special master meets separately with each party as soon as possible after appointment to determine positions and interests, as well as to solicit initial strategies to resolve the dispute. Parties should encourage their attorneys to be co-spokespersons, rather than advocates speaking solely for them. Mediated approaches work best when negotiating directly with the party
  4. If the parties agree to Integrative mediation, then positional bargaining by the parties should be minimized. Such bargaining can undermine the process a special master-mediator is attempting to implement.
  5. Be aware that mediator backgrounds and style differ tremendously. Negotiatory mechanisms fostered in interest-based/mutual gains bargaining almost always result in better long-term solutions than position-based/compromise bargaining — especially in public disputes. Check the mediator’s training, case history, results, and references. Ensure the special master has qualifications that apply to multi-party, complex, public disputes enduring for many months or years.

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Scott Van Soye
Managing Editor - Scott Van Soye is the managing editor of ADR Times. He is also a full-time mediator and arbitrator working with the Agency for Dispute Resolution with offices in Irvine, Beverly Hills and nationwide. He is a member of the California Bar, and practiced real estate, civil rights, and employment law for over twenty years. He holds an LL.M. in Dispute Resolution from Pepperdine University, where he is an adjunct professor of law. He welcomes your inquiries, and can be reached at [email protected] or (800) 616-1202, Ext. 721

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