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April 23, 2024

Being the Change We Want to See: Using the Term “Court-Appointed Neutrals” To Replace “Master” or “Special Master”

Merril Hirsh, Washington, DC

Gandhi probably did not say “be the change you wish to see in the world.” But it is still good advice. On February 12, 2024, ABA President Mary Smith wrote the Judicial Conference of the United States requesting federal rules changes necessary to help implement ABA Resolution 23A516 by amending the Federal Rules of Civil Procedure to substitute the term “court-appointed neutral” for “master,” and amending the Federal Rules of Bankruptcy Procedure to permit the use of court-appointed neutrals in bankruptcy proceedings. The Judicial Division co-sponsored Resolution 23A516 with the Section of Dispute Resolution, as the latest step in what has been a seven-year effort to improve the ways courts can make use of court-appointed neutrals.

Both these changes seek simple justice. Courts should not be calling people they appoint to positions of authority “masters,” at all, much less when what they really mean is someone brought in to help. Bankruptcy judges should not be hamstrung by a 40-year-old rule from appointing people who could help reduce costs and facilitate the efficient management and resolution of the critical cases they face. The effort to rethink how we can use court-appointed neutrals is part of two other ABA Resolutions the JD Resolution, Resolution 19M100, which, as amended by Resolution 23A516 adopted Guidelines on the Appointment and Use of Court-Appointed Neutrals in Federal and State Civil Litigation and Resolution 23A517. This Resolution urges states, localities, territories and tribal courts to adopt a new Model Rule of Civil Procedure on the Appointment and Use of Court-Appointed Neutrals.

The Resolutions also serve the administration of justice. The message from these resolutions and the thousands of hours spent on them by dozens of people in the Judicial Division and other ABA sections, divisions and forums, is that court-appointed neutral is a tool that can be used in many ways. “Special Master” is not only a bad term, but an inaccurate one (for it suggestions someone brought in to take over, when they are actually brought in to help). And the dozens of other names used for neutral appointments is confusing. Standardizing the term “court-appointed neutral” to refer to these appointments allows judges and parties to consider how in what way they might be used in particular cases. It is an accurate description that the ABA is now seeking to make a term of art.

But rule changes take time. At best, these requests for federal rule changes will be on a cycle that would make them effective December 1, 2025. It could take years longer. Also, these are just the federal requests. State, local, territorial and tribal courts also need to consider whether they will make the change in not only name, but thinking, from “master” to “court-appointed neutral.”

In the meantime, the rules continue to use the term, even as we urge they should not.

For bankruptcy judges, the ability to use court-appointed neutrals must await the rule-change. But on the change of name, there is something we all can do now.

Numerous organizations are joining in a movement to start using court-appointed neutrals. The National Association of Women Judges, the American Judges Association, the National Council of Juvenile and Family Court Judges and the National Asian Pacific American Bar Association have all adopted resolutions supporting the name change. The American Arbitration Association has eliminated the use of “master” in its rules. The Institute for Inclusion in the Legal Profession has sent an open letter joining with the ABA in the name change and announced its intention to encourage lawyers and judges to substitute the term “court-appointed neutral” in their own usage. The Academy of Court-Appointed Neutrals has asked all of its members to stop using the term “master” in business cards, websites, resumes and social media.

Judges can be part of the change they seek by using the term “court-appointed neutral” in orders, statements from the bench and references. Until the rules are changed, judges can use a parenthetical reference in their orders – e.g., “the court is considering the possibility of making use of a court-appointed neutral (what Rule 53 refers to as ‘master’). This simple change helps the effort to rebrand the profession and makes us part of the change we seek to see in the world.

The Lawyers Conference Court-Appointed Neutrals Committee website has information and support documents concerning court appointed neutrals. Committee members are also available to assist efforts to make more effective use of court-appointed neutrals. Contact Committee Chair Merril Hirsh [email protected] for more information.

Merril Hirsh

Chair, Court-Appointed Neutrals Committee

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