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The Academy of Court-Appointed Neutrals (ACAN) reported today that, on February 12, 2024, American Bar Association President Mary Smith asked the Judicial Conference of the United States “to amend the Federal Rules of Civil Procedure to substitute the term “court-appointed neutral” for “master” and amend the Federal Rules of Bankruptcy Procedure to permit the use of court-appointed neutrals in Bankruptcy proceedings.
These requests seek to implement two resolutions approved by the ABA House of Delegates. ABA Resolution 100, approved in January 2019, adopts Guidelines on the appointment and use of court-appointed neutrals in federal and state civil proceedings and calls for the amendment of Bankruptcy Rule 9031 – a 40-year old rule that has prevented using these neutrals in bankruptcy proceedings. ABA Resolution 516, adopted in August 2023, urges rule-makers and legislators to substitute the term “court-appointed neutral” for “master” or “special master” and calls for additional rule or legislative changes to allow court-appointed neutrals to be used in bankruptcy proceedings in the same way that they are used in other proceedings. Another Resolution (517), which is not directed at federal rules changes, urges state, local, territorial and tribal courts to adopt a Model Rule on Court-Appointed Neutrals.
These rule change requests reflect a growing settlement. Our Academy changed its own name to the “Academy of Court-Appointed Neutrals” in July 2022. In October 2022, the National Association of Women Judges adopted a “Resolution in Support Of Ceasing To Use The Term “Master” Or “Special Master” And, The Use Of “Court-Appointed Neutrals.” More recently, the Institute for Inclusion in the Legal Profession sent an open letter to ACAN’s Executive Director joining the effort to change the name to “court-appointed neutral.” And this past week, the National Asian Pacific American Bar Association Board of Governors adopted a “Statement Supporting Replacing the Term “Master” or “Special Master” with “Court-Appointed Neutral,” Broadening Pool of Candidates, and Supporting Skills Development.” The American Arbitration Association has also changed the term it uses for neutrals appointed to assist in arbitrations and the Judicial Arbitration and Mediation Service (JAMS) is implementing similar changes. Several other organizations are actively considering public support for the change.
On January 10, 2024, Hon. Michael Kaplan, Chief Bankruptcy Judge for the District of New Jersey, also asked the Judicial Conference of the United States to support amending the bankruptcy rules to permit the use of court-appointed neutrals in bankruptcy proceedings.
ACAN President Randi Ilyse Roth explained, “courts should not be put in the position of calling people they appoint to positions of authority ‘master’ and they should not be deprived of the ability to make use of this tool. ‘Court-appointed neutral’ much better describes the work our profession does to help courts serve the administration of justice. Bankruptcy courts should be able to make use of this resource when it does help.”
ACAN Executive Director Merril Hirsh, whose work on the effort to improve the profession with the ABA began years before he was asked to serve at ACAN, explained, “while ACAN strongly supports these changes, the request does not come only from the people who serve as neutrals. ABA President Smith’s requests are the latest product of a seven-year effort to bring together representatives of sections, divisions, forums and conferences across the ABA and to join with numerous other organizations to rethink our profession from the name up and make it a better understood and more effective part of the administration of justice.”
For more information, contact Mr. Hirsh at merril@merrilhirsh.com.
