On July 27, 2022, the ABA Judicial Division Lawyers Conference Special Masters Committee changed its name to the Court-Appointed Neutrals Committee. We made this change because we concluded that “Court-Appointed Neutral” both better serves our Committee’s goals and better describes the services the ABA has urged courts and litigants to consider using.
Our Committee Is Trying to Broaden Our Thinking about Neutrals.
The Lawyers Conference formed our Committee in 2016 to help examine whether courts could make more effective use of what has most often been called either “special masters” or, in the current Federal Rules of Civil Procedure “masters.” Part of the earlier work of our Committee was to form a Working Group across 12 Sections, Divisions and Forums of the ABA that met for 18 months and reached consensus “Guidelines on the Appointment and Use of Special Masters in Federal and State Civil Litigation,” that the ABA House of Delegates approved as official ABA Policy in January 2019. The First of the Guidelines is that it should be an accepted part of judicial administration in complex litigation (and in other cases that create particular needs that a special master might satisfy), for courts and the parties to consider using a special master and to consider using special masters not only after particular issues have developed, but at the outset of litigation.
As the Guidelines, and the Report that accompanied them, go on to explain, there are many benefits from regularizing the process of considering whether to use these professionals. Among other things, a regular process for considering these professionals would be expected:
- To make people more familiar with what these professionals do and therefore better able to use them effectively and creatively to improve the administration of justice.
- To help diversify and improve the quality of those selected by, for example, facilitating the use of rosters and systems for vetting potential neutrals in advance.
- To afford litigants a clearer idea of why the appointees are chosen; what they will be doing (or not doing); how they will be paid; and how they are going to proceed.
- To increase accountability by fostering training and evaluating systems and scholarly study of people’s experience.
Since the ABA adopted these Guidelines, our Committee has been working on many projects to promote these ideas. For example, we have just issued for comment a draft model state rule and are working on model principles of ethics, criteria for selecting neutrals to a roster, and survey instruments.
"Court-Appointed Neutral” much better describes what we are urging courts and litigants to consider.
When we focused on these projects, our Committee realized that we are working on a historic effort to broaden both the opportunities for people to serve in this profession and the service the profession provides to our courts. And a broader name much better serves this effort.
“Master” has a number of positive connotations. It can refer to admirable qualities, like expertise, proficiency, accomplishment, scholarship or leadership. The term appears 42 times in the Federal Rules of Civil Procedure and a plurality of state rules addressing the appointment of individuals to assist. But “master” also has obvious negative connotations that have led many professions, in many contexts to consider using different terms. For example, electrical and software engineers are discussing whether they should continue (as they have for decades) to use master and slave to refer to situations in which one device exercises asymmetric control over others. Colleges, including Harvard, Yale and Rice have stopped using “master” as an academic title or the name for the head of a residential college. Real estate professionals are debating whether “master” bedroom is the best name.
At least two states – Maryland and Pennsylvania – have changed court rules in recent years to substitute a different term for “masters.” In Pennsylvania’s case, the move followed a resolution of the Philadelphia Bar Association that raised a number of concerns about appointing someone called a “master.” The resolution noted that the term “creates a sense of separation, anxiety, and confusion” because it suggests that some people are subject to others. Citing these changes, the primary professional organization of these professionals recently changed its name from the Academy of Court-Appointed Masters to the Academy of Court-Appointed Neutrals.
Although no one associated with using the term “master” in this context intended the term to connote these negative or restrictive images, it is confusing to use a limiting term to describe this profession. The professionals who can serve courts go by many names. Often their titles are not “master.” They are called “facilitator,” “monitor,” “ombuds,” “claims administrator,” “expert,” “mediator,” “investigator,” “advisor,” “special magistrate,” “receiver,” among many other titles.
They have these different titles because they serve roles so diverse that they are limited only by our creativity. Where the term “master” suggests someone brought in to adjudicate, these many types of court-appointed neutrals are more like a Swiss Army Knife: a multipurpose tool that could be used for quasi-adjudicative work, but could also be used for facilitative, investigative, intermediary, informatory, administrative, monitoring, implementing or many other purposes.
“Court-Appointed Neutral” is also far more accurate. Calling someone “Master” suggests that they are being brought in to make decisions for others. That misdescribes someone who is used to mediate or otherwise assist the parties in reaching their own resolution of differences; or to offer expertise about science, or particular industries like construction, or forensic accounting; or to serve numerous other roles. Indeed, even when the role is ostensibly quasi-adjudicative, a significant benefit from appointing a neutral can come from helping the parties work out differences without the need for motions in the first place. A “Court-Appointed Neutral” better describes an unbiased participant brought in to help, rather than to take over.
“Court-Appointed Neutral” accommodates the fact that jurisdictions use different terms for this function.
The use of neutrals who assist courts in administering justice in Anglo-American jurisprudence dates back to the Norman Conquest. Yet in the 1,000 or more years in which this tool has been used, jurisdictions still have not settled on a common term for it. This strongly suggests that there is no perfect term for this multifunctional tool. Our Committee has just issued a discussion draft of a model state rule and is working on other projects designed to assist every US jurisdiction regardless of the term or terms it uses. “Court-Appointed Neutral” is generic and captures all of these terms.
In short, although, “master” is now the most common term for this position, our Committee will urge changes because there is a better way to describe it. “Court-Appointed Neutral” is much better.
Anyone with questions or comments should feel free to contact our Committee Chair, Merril Hirsh, [email protected] (202) 448-9020.