The parties do. Rule 53 requires the appointing order to state the basis, terms and procedure for compensation, and courts most often split the cost evenly. Allocation can be adjusted — weighted toward the party generating the disputes, or shifted entirely where a master's time was consumed by one side's conduct.
What the rule requires
Rule 53(a)(3) directs the court to consider the fairness of imposing the resulting expenses, and Rule 53(g) requires the appointing order to fix the basis, terms and procedure for compensation, including the allocation among the parties. This is not left to be worked out later, and a party with a view about allocation should raise it before the order is entered rather than after.
The usual arrangements
Even split. The default, and appropriate where both sides benefit roughly equally from having disputes resolved quickly.
Weighted by resources or by conduct. Courts have adjusted the split where the parties' resources are markedly asymmetric, or where one side's behaviour is generating most of the master's work.
Shifted after the fact. Where a party's unreasonable position consumed the master's time, courts have reallocated. This is worth knowing on both sides: it is a real deterrent to using a master as a venue for obstruction.
Borne by a fund. In class actions and MDL, the master's fees are frequently paid from a common benefit fund or a settlement fund rather than by the litigants directly.
Controlling the cost
The expense is genuinely variable, and most of the levers are in the appointing order:
- Define the scope narrowly. A master appointed for "discovery disputes" will be asked about everything. One appointed for a specific protocol, or a defined category of dispute, will not.
- Set a budget or a reporting requirement. Periodic statements let the parties see the trajectory rather than receive a surprise.
- Agree a procedure that favours conference over briefing. Much of what a master resolves can be handled in a phone call. An order that requires formal submissions for every dispute recreates the cost the appointment was meant to avoid.
- Use the master to prevent rather than resolve. Involvement at the ESI protocol stage is cheaper per unit of dispute avoided than adjudication later.
Is it worth it?
The objection that a master adds cost is correct and incomplete. The comparison is not against zero — it is against the cost of the alternative, which is motion practice on the same disputes, briefed by counsel at counsel's rates, decided on the court's timeline, with the schedule slipping in the meantime.
In a straightforward two-party case, the alternative is cheaper. In a matter with terabytes of data, hostile relations and a dispute every fortnight, it usually is not, and the delay carries its own price that never appears on an invoice.
The question worth asking before moving for appointment is simply how many discovery motions the case has already produced, and how long each took to resolve. That number tends to settle the argument in either direction.
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