Each year, thousands of children are affected by high-conflict parental disputes ranging from custody battles to disputes over parent time, parent roles and parenting styles. While these problems are generally most acute during the divorcing process, it is common for them to persist throughout the children's upbringing.
Parents are often frustrated at the amount of time or expense it takes to have disputes heard by a court. Some realize that they cannot obtain a satisfactory solution through litigation. They often resort to self help or just refuse to cooperate with the other parent, thereby increasing the conflict and increasing the odds of detrimental impact to the children.
This is where a special master-sometimes called a parenting coordinator-can assist. A special master may be appointed by the court but more preferably they would be contractually retained by the parents through referrals by their lawyers or the court. The special master, by order or agreement may first try to resolve the dispute through mediation but is ultimately empowered to make a decision as an arbitrator, subject to the judicial right of review provided for in the Utah Arbitration Act. As an extra protection to the parties, they may want to agree that a court would have a right to review the special master's decision with the requesting party responsible for attorney fees if that party did not prevail.
A copy of the Special Master Agreement which I generally utilize is included here for review. It can be modified by agreement to fit the needs of the parties. They can decide on the extent of the authority that I would have or the circumstances under which I would become involved.
The appointment of a special master is most likely to be beneficial for disputes that arise after a divorce is final and a Decree entered but could also serve a beneficial, more limited purpose, following the entry of a temporary order or while the divorce is pending. The appointment of a special master would accomplish one or more of the following goals:
Generally, when serving as a special master, I will encourage the parents to reach agreements using my mediation skills but I will have the authority to intervene directly and can make immediate, binding decisions. Long term, intimate exposure to the family allows the special master to understand problems with dysfunctional patterns and provide consistent intensive intervention. The special master provides an effective alternative to litigation by being knowledgeable, authoritative and committed to resolving those seemingly intractable cases. The special master may also coordinate problems with day-care providers, teachers, health-care professionals and extended family members who often get caught in the middle of parental disputes.
It is my view that in my role as a special masters, I will be able to handle parental conflicts of all levels and use authority in a reasonable and benevolent manner. I know that it is especially important that I be able to resist manipulative efforts of parents to influence decision making.
While basic custody or parent plan agreements are made within the court process, either by the Court or by Stipulation of the parties, parenting plans are required to include some non-judicial dispute resolution process, such as mediation or the appointment of a Special Master or some other non-binding arbitration process. A sample Special Master Stipulation is included here. It can be revised to meet the parties particular needs or circumstances. Many parties then have the Court make an Order which conforms to the Stipulation.
The term of the appointment can be decided by the parties. It can be terminated early or extended, provided there is agreement.
Since this is a private service, there is no public funding available and the parents must pay for my service at a pre-arranged hourly rate, with pre-paid retainers from which I draw as services are provided. Non-payment is grounds for the special master to withdraw.
My hourly rate is $160.00 which is generally split equally between the parents but they can agree to a different division. I also generally suggest an initial $1,000.00 per person retainer but that is also negotiable.
A lawyer may view this service as invasive of services that are offered and are a part of the lawyers livelihood. However, most of the kind of disputes that would be handled by a special master are of a nature that a lawyer will not or can not handle on a cost effective basis or are simply disputes that are not resolved because the parents do not contact a lawyer because of cost. This allows the disagreements to percolate until they grow to larger proportion and end up in court with a whole variety of small disagreements. In most instances, earlier intervention could have prevented many of these subsequent problems.
On many occasions lawyers get calls regarding disputes between parents involving the children where as a practical matter, there is no time or ability to provide a suitable answer or solution.
Also, it would seem that negotiating custody or parenting plan arrangements in the first instance would be easier for the lawyers and their clients if they could agree in advance to a process that would avoid if not prevent further litigation.
On the larger picture it would seem that a lawyer may provide a valuable service to clients by assisting them in long range problem solving processes. Indeed, Utah's parent plan statute requires some non-court dispute resolution plan for the parents to follow. Using a special master is one option.