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<xTITLE>Court-Appointed Special Masters: Dispute-Resolvers?</xTITLE>

Court-Appointed Special Masters: Dispute-Resolvers?

by David B. Keller

This article originally appeared in the January 1998 issue of Consensus, a newspaper published jointly by the Consensus Building Institute and the MIT-Harvard Public Disputes Program.

Special masters are a unique brand of dispute-resolver relatively unknown to many mediators, facilitators, and public officials. A special master is appointed by a judge to oversee one or more aspects of litigation. They may be appointed pre-trial, during trial, or post-trial. Despite their relative anonymity, such masters have been credited with some of the most creative and innovative conflict resolution within the history of the U.S. legal system.

Judges appoint special masters for many reasons, and sometimes these reasons overlap. For example, in a system where judges are usually inundated with cases, special masters may be simply appointed pre-trial in order to free the judge to spend more time on other cases. These masters are almost always attorneys. In construction defect litigation, the special master manages pre-trial discovery and facilitates settlement before trial. In divorce cases, a special master makes recommendations to the judge regarding division of assets and child custody. A special master may be also be appointed pre-trial to manage part of a particularly complex case involving many parties and issues that will take years to litigate. The most notable examples are mass personal injury claims arising from alleged environmental or occupational exposure to chemicals.

By virtue of their appointments, special masters often become temporary or quasi-judges, and in complex cases usually serve for periods ranging from many months to many years. The endurance record may be held by Walter Armstrong, a Tennessee attorney who was appointed by the U.S. Supreme Court. He served for almost 23 years from 1969 to 1991 in a case involving determination of the southern seaward boundaries of Alabama, Louisiana, and Mississippi.

In public disputes, special masters are often, but not always, appointed to implement a court order following trial, and usually have the longest tenure of all such masters. Cases include natural-resource allocation, hazardous-waste cleanup and associated-cost allocation, land-use planning, and reform of public institutions (for example, city school systems, city zoning boards, state prisons, and state mental-health institutions or schools for the mentally retarded).

Not always asked to mediate

While special masters have sometimes mediated or at least utilized mediative skills in cases involving public disputes, they are not always asked specifically to mediate by the court. Lawrence Susskind, a professor of urban and environmental planning at MIT and a former special master in a municipal waste cost allocation case, has described several types of cases where a special master might be asked to mediate:

(1) when a master with specialized expertise can resolve technical and economical issues that would otherwise be too difficult to deal with via the usual judicial process;

(2) when expedited resolution can forestall continued appeals;

(3) when narrowing the range of issues for the judge to address can save the court time and money, especially when highly sophisticated technical experts can make it exceedingly difficult for the judge, let alone the jury to comprehend; and

(4) when the parties need help in generating new ideas to encourage out-of-court settlement.

Susskind [who is publisher of Consensus] considers it of critical importance that the courts understand that the best mediators are not always attorneys. Because of our legal system where attorneys bargain as advocates, they may not all be familiar with the concepts of consensus, or interest-based and mutual gains bargaining -- skills a process mediator has. Multi-party public disputes demand even greater mediator skills.

In fact, not all special masters are attorneys, retired judges, legal academics, or federal magistrates (government employees handling pre-trial case management for district judges). Many are selected based on the substantive expertise deemed necessary by the judge to resolve the case. For example, a special master might be an accountant, urban planner, environmental health scientist, or former public administrator. Sometimes, a special master may be selected because he or she also has demonstrable skills as a mediator. Such negotiating skills have often lent themselves to an unusually high degree of success. In reality, a special master may play multiple, overlapping, and sometimes conflicting roles such as arbiter, mediator, facilitator, negotiator, subject matter expert, and court advocate. The special master has an onerous, yet rewarding task in carrying out his or her assignment, especially when playing such multiple roles.

Depending on their backgrounds and needs, special masters may, in turn, assign a deputy special master or hire consultants to work with them. In any case, the point of entry, duties, and fees of the special master are spelled out in the court's document of appointment, often referred to as the "order of reference." Pre-trial or during trial, fees are often split among the parties. Post-trial, fees are usually paid by the party found liable.

Duke University law professor Francis McGovern is perhaps the "master of all special masters." He has served as a court-appointed expert or special master in mass personal injury claims cases involving asbestos in Ohio and Texas, DDT in Alabama, the Dalkon Shield, and is currently the federal special master acting as liaison to the state courts regarding the silicone gel breast implant litigation. Among other appointments, he has also acted as special master in a Native American fishing rights case in Michigan. McGovern is known for his knowledge of dispute resolution theory and practice, which has resulted in many innovative solutions to highly complex cases often involving thousands of claimants. McGovern emphasizes the importance of the "right chemistry" between the special master and the parties for the process to be successful.

Special masters have served in several hazardous waste cleanup cases, including famous ones like Love Canal in New York. The first time an environmental health scientist and mediator was asked by the courts to oversee cleanup of a hazardous waste site was not until 1993, when I was appointed in California. I found myself walking a tightrope among many conflicting roles, resulting in a hybrid style of dispute resolution I term "mediation-negotiation."

We were able to resolve all case issues during my almost-four-year tenure without having to return to court. 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, within the overall strategy of resolving the case. (For a detailed description of this case, see the October 1997 issue of Negotiation Journal.)

Post-trial, special masters are perhaps most commonly appointed in institutional reform cases. J. Michael Keating, an attorney-mediator in Providence, R.I., is one of the more prominent special masters in this arena. He has been appointed in cases involving low-income housing and special education in Rhode Island, and prison reform in Texas, Rhode Island, Massachusetts, and Georgia. He is currently a special master in two California prison reform cases. By their very nature, these types of cases usually receive a great deal of media and political attention. Legislative changes and additional budgeting are often necessary at the state level to effect the reforms ordered by the court. Keating believes the most important ingredient for success of the special master is the interweaving of traditional negotiation and mediation skills with the indirectly coercive power of the court.

Peter Adler, a Honolulu-based mediator, has been appointed as a special master in cases as varied as products liability, construction defects, facility siting, and land-use planning. He thinks it is vitally important that the parties and the court know exactly what mediation is, and that the master pursue business, personal, and practical options -- in addition to legal alternatives -- in resolving the case. He also says the special master must help "choreograph" the role of the court in the mediation process via the judge's hearings and rulings, as a way to ultimately move the case to resolution.

Recommended do's and don'ts

I offer the following recommendations as a starting point for people who are involved with or are considering the use of special masters in mediative capacities:

1. Optimally, attorneys and their clients will have an opportunity to suggest their choices for special master, or at least to review the master's qualifications and fees before the judge makes the appointment. The parties/attorneys can also recommend to the judge that a special master be appointed. The court and the parties should be clear on what expertise they really need: Attorney? Subject-matter expert? Mediator with process expertise? Mediator with subject-matter expertise? Mediator with process and subject-matter expertise? Former administrator or manager? Other skills?

2. 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 (or other negotiatory mechanisms like facilitation); (f) how disputes will be handled between the special master and the parties; and (g) provisions for hiring and appointing of additional experts (substantive or process) 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 parties, whether in meetings alone with the master, meetings among all the parties, and/or public sessions.

4. If the parties are agreeing to a process predicated on interest based/mutual gains bargaining, then staunch and unrelenting advocacy on the part of counsel, as well as 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. You may wish to refer to Competencies for Mediators of Complex Public Disputes, a report available through the Society of Professionals in Dispute Resolution in Washington, D.C.

David B. Keller is a consultant in environmental and conflict management, based in San Diego. He mediates a wide range of cases.