Divorce Mediation Blog

Masters and the Probate & Family Courts

Wednesday, December 12, 2012

The Probate and Family Court appoint two kinds of “masters”. A master is a lawyer who holds hearings as an extension of the Court itself. One kind is a “discovery master”. The other is a “master, facts final”.

A discovery master aids the Court’s case management by helping the attorneys negotiate, and if necessary by deciding disputes over the exchange of information, known as discovery, in the litigation process. Each side may challenge the discovery master’s decision to the appointing judge, but they rarely do so. This is because the lawyers generally feel that the master process was fair and that a judge will likely address the issue in the same or a similar fashion as the master.

A master, facts final, hears some or all of the contested case, and makes a recommended judgment. The process follows the same rules as in court, unless the parties agree otherwise. One or both parties ask the Court to “confirm” the master’s recommended judgment. If one party disagrees, he or she retains the right to oppose the entry of the master’s decision and a court judgment. The Court retains the right to accept or reject the master’s recommendation in whole or in part.

Where parties cannot settle their matter by direct negotiation, by mediation or otherwise, the use of either kind of master is a way in which they can maximize control over their case, by selecting their own master, and by pursuing what is a mostly private proceeding that most often results in the agreed entry of judgment based thereon.

With our courts in crisis, this avenue is being followed more and more. Most every judge is happy to approve a selected master and to stand by for the master’s result. When faced with long delays and abounding uncertainties in the public trial process, due consideration should be given to the use of a master for all or part of a contested case.

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