Increasingly, litigation parties whose disputes elude settlement are opting out of the public trial process and electing private resolution services instead. Sometimes, the mutual recognition of the need to “go private” itself unlocks the capacity to agree on substantive points; but often the parties remain fixed in their negotiating positions, despite the recognition that they share important process interests. For these people, third-party decision-making remains necessary.
Contracting parties may, for a variety of reasons, conclude that future disputes may well occur, yet they share an interest in avoiding litigation. Therefore, they designate an arbitrator before whom to air future controversies. The arbitrator holds the power make “awards” that are final and binding (subject in the case of child support and child custody matters to review by the court for “best interests”). If the designated arbitrator becomes unable or unwilling to serve, the parties may designate the court as the agent to appoint another arbitrator.
The decision to seek private adjudication may also arise from the litigation process itself. In these cases, the result may be arbitration, but it may also take the form of a court-appointed “master”. A master sits as an agent of the court, holding hearings, considering evidence, finding “facts” and recommending resolutions. The master’s work is subject to review by the appointing court, most often resulting in adoption of the master’s results.
In either case, the parties have asserted control over their own destiny, despite their inability to achieve substantive settlement. They select their decision-maker and conduct hearings at times and with rules to which they themselves agree, with efficiency and privacy maximized.