Neutral Evaluation

In neutral evaluation, a neutral person (called an “Evaluator”) listens to you and the other parties and reads your short written statements. Then, the Evaluator gives an opinion on the strong and weak points of each party’s case.
The evaluator’s opinion can help you understand the most important legal issues in your case, prepare stipulations (agreements), draft discovery plans, and give you an idea of the value and likely result if your case went to trial
This process is informal and confidential and can help you and the other parties solve your problems.
Neutral Evaluation is a good option when you and the other parties:

• are far apart in what you think of the law or value of the case
• have a case that involves a technical issue about the evaluator has special knowledge
• need help to plan your case, to save on legal fees and costs, or
• are interested in a kind of solutions that doesn’t involve money; like, having someone change the way they act.

Neutral Fact Finder

A neutral fact finder conducts an independent investigation into the cause of the disagreement. The fact finder will interview both sides, gather additional information, and then present findings and possible solutions to the parties. The findings and recommendations are not binding but are incorporated into the negotiations between the parties and their counsel. The fact finder usually does not directly participate in the negotiation process.

Referees and Special Masters

1. When is a Referee or Special Master needed?
2. What do Referees do?
3. Who chooses the Referee?
4. How do we choose a Referee?
5. What is a Special Master?
6. Who pays for the Referee or Special Master?
7. What are the qualifications of Referees and Special Masters?

1. When is a Referee or Special Master needed?
Discovery Referees are most commonly used in complex matters where there is a disagreement between the parties relating to the scope and subject matter of discovery. These disputes can be very time consuming and emotional. To improve efficiency, the trial court has the jurisdiction to appoint a referee if the judge feels that it is warranted by the situation. The process may be “voluntary” or “involuntary” and is governed by the Code of Civil Procedure. In California, the appointment process is governed by §638 (voluntary) and §639 (involuntary).
A reference is voluntary when the parties and their counsel agree that the appointment of a referee is necessary. Often they will also have agreed to who shall serve as the referee. The referee need not be a retired judge, but almost always is at least a lawyer due to the nature of the appointment and the knowledge necessary to fulfill those duties. A reference is involuntary when the judge independently determines that a referee is needed. The parties may still have the option of selecting their referee, but the judge will appoint one if the parties can not agree on someone who is mutually acceptable.

2. What do Referees do?
In complex cases, parties can agree to have a Referee to help them move their case along. Referees can help the parties exchange papers, and help settle some of the issues so the trial can be shorter.
Referees often decide on discovery disputes. Usually, the Referee will recommend a solution to the Court. The Judge can accept the recommendation and make it final. Sometimes, parties ask the Referee to settle the whole case. Parties can give the Referee as much authority as they want. This can make the process go faster. If they want, parties can agree (stipulate) to make a Referee’s decision “binding” (final).

3. Who chooses the Referee?
The parties can choose their own referee. Or, sometimes, the court appoints a referee. If the court appoints a Referee, the parties have 15 days to object in writing if they are not happy with that Referee.

4. How do we choose a Referee?
Choosing a Referee is just like choosing a mediator. Parties must find someone everyone can agree to use.
The ADR Administrator has a list of mediators, neutral evaluators, and private arbitrators who can help you with your case. Some of those neutrals may be willing to act as Referees or Special Masters as well.
You can see this list at the ADR section of the court’s main website, or go to www.sdcourt.ca.gov .

5. What is a Special Master?
In Federal Court, a Referee is called “Special Master”. Referees and Special Masters help parties handle the exchange of papers and can help settle some or all of the issues in the case.

6. Who pays for the Referee or Special Master?
The parties pay for the Referee or Special Master. The parties decide on how to divide the fee.

7. What are the qualifications of Referees and Special Masters?
Choose someone who knows about the area of law that is involved in your case.
Choose someone with good personal skills and who is a good negotiator. It also helps to choose someone with experience in handling court cases.
Choose someone you think will be fair to all parties, who can listen, and who can sort out the different facts and understand the legal questions.