Disputing Blog by Karl Bayer, Victoria VanBuren, and Holly Hayes
The problem with chickens and eggs isn’t which one comes first. It’s that that sometimes neither comes at all. It is very difficult to start out in alternative dispute resolution because the most important qualification for doing it is having done it before. You won’t hear many people looking for a mediator or arbitrator say, “let’s get someone who has never done this.” People even choose ADR professionals based on how many times they have done it before. Even if you do not like a mediator very much, it is natural to prefer the devil you know to one you do not.
The fact that this chicken-and-egg problem is natural, however, does not make it any less a problem. For those who use ADR, it limits options. The most creative ADR professional may be someone who has never gotten the chance to do it. For those who want to break in the profession, it creates a discouraging mountain to climb. And by grandfathering in people who have done it before, it makes it much more difficult to expand and diversify the profession with people of different backgrounds, experiences, skills and perspectives. This, in turn, hurts the credibility of the profession.
Special masters, however, are in the process of seizing an opportunity to change that. The process began with conversations about the demand for special masters. Almost seven years ago, Karl Bayer, Jim Rhodes and I began a series of posts discussing how courts could benefit from making more effective use of special masters. You can read the series starting here. The standing on one foot version is that special masters are an underutilized tool for efficient handling of cases.
The Judicial Division of the American Bar Association took up this idea and, in 2016, formed a working group of representatives from ten different divisions, sections and forums of the ABA who, after 18 months of work, reached a consensus on Guidelines for the Appointment and Use of Special Masters in Federal and State Civil Litigation. In January 2019, the ABA House of Delegates adopted the Guidelines as official ABA Policy.
Afterwards, the Special Masters Committee worked to implement the Guidelines by, among other things, organizing programs and writing articles on the thinking behind the Guidelines; brainstorming and working with courts and law schools on how particular courts might benefit from more effective use of special masters; and (in projects in progress) drafting principles of ethics for special masters, a model rule for state courts to use in appointing special masters, criteria for selecting special masters to a roster, an application for special masters and survey instrument that could be used to evaluate and improve special masters’ work. When the pandemic hit, the Committee moved to addressing ways in which courts might be able to use special masters to deal with unprecedented demands and backlogs. Much of this work is available on the ABA’s website.
OK, so that’s demand. What about supply? On September 1, 2021, the Academy of Court-Appointed Masters announced that it was working (1) to open its membership to people who had never previously served as special masters, and to offer training and mentorship to a new generation of special masters who would meet the highest professional standards; and (2) to develop partnerships with other organizations both public and private both to recruit diverse candidates to serve as special masters and to expand the ways in which special masters can assist in the administration of justice.
The process will take some time to put in place – even ACAM was not built in a day. But we are excited about these new steps. Perhaps the solution to the chicken-and-egg problem is the right supply and demand.
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