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Miller|Mediation & ADR Services, Inc.

 

Special Master

 

ADR stands for Alternative Dispute Resolution.  Alternative to what?  Litigation, or any other combative-based method of resolution (primarily arbitration and/or trial).  I also serve as a Special Master:


Key Benefits:


Cost:  The Courts do not have the time to handle the particularities of complex cases.  In lieu of limited contact with the Courts, and restrictive schedules which Judges impose, the parties can agree to appoint a Special Master.  The Special Master fundamentally acts as:  (1) Discovery Referee, to address the myriad of discovery issues which arise in complex cases; and (2) Mediator, assisting their settlement negotiations.  The Special Master can spend more time than the Judge in evaluating the issues surrounding the sharing of necessary information, and deciding how to resolve them.  The Special Master can also spend his time with the parties during certain discovery events, learning about the case.  This educational process helps the Special Master understand the complex issues among numerous parties, which assists his ability to mediate the disputes.


Control:  Litigation is governed by procedural rules which can be inflexible, and rigidly enforced by the Courts.  But since the parties can decide the scope of the Special Master's role in their case, as well as agreeing on the substantive resolution, they control the amount of time and energy which will govern the process and the end result.


Time:  In deciding how to govern the procedure, the parties have full control over how much time it will take to resolve their matter.  Appointing a Special Master gives them the ability to decide how much time, and discovery, they need in order to get the case to settlement discussions.  And this does not have to mean a faster resolution.  While disputants generally seek a faster resolution than the Courts might provide, some matters actually require more time than the Courts want to allow, which creates great tension for the disputants.  An example is a construction defect/site development case where a house was constructed on a hill, and was suffering damage as a result of land movement.  While all of the parties and their consultants agreed they needed more time, the Court required resolution of the case in less time.  Subsequently, the parties' need for investigation and analysis was limited by inflexibly short time restrictions imposed by the Court.

 
Are there any downsides?

Unless the parties do not wish to control their future, there are no pitfalls to appointing a Special Master!  Best case scenario:  the disputants resolve their matter in less time at lower cost than litigation, or other forms of ADR.

The parties might spend some extra time in the Special Master process, without successfully resolving their dispute at the end of the process.  However, even without a successful settlement, the parties are still able to engage in the valuable exchange of information which is a critical part of the process.