By: Karisha Khadayat
In a typical civil lawsuit, companies can wait months (sometimes years) for their case to be heard in an already overloaded court system. But increasingly, some parties are opting out entirely. Instead of stepping into a public courtroom, they hire a retired judge, move proceedings into a private office or conference room, and resolve their dispute on their own timeline. With this arrangement, they are able to avoid media attention and limit the amount of information that becomes part of public records. According to a report from The Wall Street Journal, private judges are used regularly in complex disputes because of the efficiency that traditional courts cannot provide. This practice has even surfaced in high-profile cases, such as the divorce between Angelina Jolie and Brad Pitt, where a privately hired judge oversaw proceedings. But, this is not to say that private judging doesn’t struggle with controversy over transparency and impartiality. It’s important to note that this option is not available to everyone (including the wealthy), as criminal cases must remain in the public court system. Meaning, access to private judging is largely limited to civil disputes, and often to those who can afford it.
Private judges are retired judges or experienced attorneys who are hired by parties to resolve a dispute outside of the traditional court system. Instead of waiting for a publicly assigned judge, both sides agree to select and pay a neutral decision-maker to handle their case. As previously mentioned, this process exists almost entirely in civil law, not criminal. For example, in high-profile cases involving figures like the Sean “P. Diddy” Combs trial, criminal charges must be handled in public courts because they involve the state prosecuting an individual. Private judging, by contrast, is used for disputes between private parties, such as: contracts, custody battles, or business litigations, where both sides can agree on how the case is resolved.
Private judging is often grouped with Alternative Dispute Resolution (ADR), but it is important to distinguish it from other forms. First, ADR refers to the methods of resolving disputes outside of traditional courtroom litigation; this can be done to reduce costs, delays, and complexities of a case. Within ADR, private judging is commonly divided into four main types: negotiation, mediation, conciliation, and arbitration. Negotiation is the most informal process, where the parties communicate directly with one another to reach a mutually acceptable agreement without any third-party involvement. Mediation involves a neutral third party who facilitates discussion and helps guide the parties toward a voluntary resolution but does not impose a decision. Conciliation is similar to mediation, but the neutral party often takes a more active role in proposing solutions and ‘bridging’ communication between the parties. Lastly, arbitration is a more formal process in which a neutral arbitrator hears evidence and arguments from both sides and then issues a decision, which may be binding dependent on the agreement. It’s important to note private judging looks more like a real trial: evidence is presented, arguments are made, and the private judge issues a binding decision. In some states, that decision can then be entered into the official court system and enforced like a normal judgement, which gives it real legal power despite being conducted privately.
Private judging remains relatively limited but is most commonly used in states such California and Florida where legal frameworks allow parties to appoint a temporary or private judge in civil disputes. As previously mentioned, its growing use is largely driven by the inefficiency of the traditional court system. Civil litigation is notoriously slow: on average, cases take 1-3 years to resolve, while more complex disputes can last 3-5 years or longer. Even in the federal courts, the median time to resolution is over 15.6 months according to the United States Courts. Much of this delay stems from the discovery phase, a lengthy pre-trial process involving depositions, interrogatories, and the exchange of evidence and documents, which can stretch on for months or even years. In response, private judging offers several advantages: it allows parties to move cases forward much faster, operates on a flexible schedule, and maintains a higher degree of confidentiality. Furthermore, parties can select a judge with specific expertise, which is particularly valuable in complex areas like healthcare, corporate law, or intellectual property. As a result, private judging is a more attractive option for corporations, high-net-worth individuals, and even law firms seeking greater control and privacy in civil litigation.
While praised for its efficiency, a criticism about private judging is that it risks creating a two-tiered system of justice: wealthy individuals and corporations can access faster, more efficient dispute resolution(s) while the general public remains in an overburdened public court system. As a result, the practice raises fundamental concerns about ‘fairness,’ namely, whether justice is something that can be effectively ‘purchased.’ Online commentary has explicitly warned against a system where, “access to faster…dispute resolution shouldn’t be just for the rich.” Because private judges are paid directly by both parties, this option is realistically limited to those with significant financial resources. In addition to these concerns, topics surrounding transparency and accountability are issue-points. Unlike public courts, which generate records and published opinions that guide future cases, private judging typically occurs behind closed doors, meaning fewer decisions contribute to legal precedent. Furthermore, the American Civil Liberties Union (ACLU) has raised concerns that this kind of “closed door” system undermines transparency within the U.S. court system, warning that it can create a “two-tiered system” of justice. But, a supporting argument for private judging is that it is not inherently harmful and may actually improve the overall legal system. Private judging can help reduce court backlogs by diverting lengthy, high-stakes cases away from an already overworked system, potentially allowing other litigants to be heard more quickly. From this perspective, private judging is simply another tool within the legal system: one that, when used appropriately, can complement rather than undermine public courts.
To summarize, private judging is an alternative way to resolve civil disputes outside the public court system. It is mainly used because it is faster, more flexible, and more private than traditional litigation. However, it also raises concerns about fairness and access. Since it is expensive, it is mostly available to wealthy individuals and corporations, creating a tired system where some parties can effectively ‘buy’ quicker justice while others remain in slower public courts. It can also potentially reduce transparency because proceedings are private and often do not contribute to public legal records or precedent. Conversely, it can help reduce court backlogs and allow parties to resolve complex disputes more efficiently. While private judging does improve efficiency for some cases, it raises ongoing questions about equity and accessibility within an already convoluted (and overworked) legal system.
