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Bar News - January 20, 2006 Court’s Corner: Expanded Mediation Opportunities Available in Superior Court By: Robert J. Lynn, Chief Justice, New Hampshire Superior Court
The new rule takes effect on February 1, 2006. It is the product of a special subcommittee established by the New Hampshire Bar Association’s Cooperation with the Court’s Committee. I had the pleasure of heading the subcommittee. Other members of the subcommittee were Attorneys Peter Cowan of Sheehan, Phinney, Bass & Green; Jeff Osburn, of McDowell & Osburn; Thomas Pappas of Wiggin & Nourie; and Daniel Will of Devine, Millimet & Branch. The subcommittee’s proposed draft of the rule was unanimously approved by the full Cooperation with the Court’s Committee last fall and was then forwarded to the Supreme Court’s Advisory Committee on Rules. The Advisory Committee also approved the rule and recommended its adoption to the Supreme Court. Rule 170-B is designed to provide an inexpensive and readily available ADR option for those cases which, because of their size or complexity, are not generally suited for the “regular” ADR under Superior Court Rule 170. Over the years, the Rule 170 mediation program has been tremendously successful, owing in large measure to the dedication and commitment of the many New Hampshire lawyers who have volunteered their time and energy to serve the public by acting as neutrals. Indeed, in some years and in some courts, the Rule 170 program has achieved success rates of as high as 85. But despite its many successes, Rule 170 is not well suited for complex cases. Although there are occasional deviations, the typical Rule 170 mediation allots only two hours for each case. Such scheduling may be fine for most routine cases, but it simply does not afford adequate time to successfully mediate a case which involves numerous parties or which presents complicated issues of liability, damages or other forms of relief. Moreover, because Rule 170 neutrals are volunteers who receive no compensation for their services, it is asking too much to expect them to devote even more of their time to the mediation of complex cases. For these reasons, at the present time, many cases which may be suitable for judge-conducted mediation under Rule 170-B are now handled through the private mediation system. Although Rule 170-B cannot – and is not intended to – replace private mediation, it is designed to provide a court-based “in house” ADR option for that class of case which does not fit the Rule 170 paradigm and which, either for economic or other reasons, is not suitable for private mediation. Rule 170-B is available only for “complex” cases. The rule uses two criteria to define this term. First, for cases in which the relief sought is monetary damages, to qualify the case must be one in which there is a realistic possibility that a damages award could exceed $250,000. Second, for equity cases, that is, cases in which the relief sought is something other than monetary damages (e.g., an injunction, a declaratory judgment), to qualify the case must be one wherein the trial can reasonably be expected to last more than five trial days. It goes without saying that, to some extent, both criteria are arbitrary – the cutoff could just as easily have been set at $300,000 for damages cases and eight trial days for equity cases. Yet, having gone through a process wherein the proposal was reviewed by a variety of experienced judges and lawyers at various levels, it seems fair to say that the criteria represent a reasonable effort to capture those cases most in need of the kind of intensive mediation which the rule envisions. Perhaps the most crucial point to be made as lawyers prepare for the implementation of Rule 170-B is that the rule is completely voluntary. Under subsection (B) of the rule, the trial judge may assign a case for intensive mediation only “[u]pon agreement of the parties.” The reason for so limiting the rule is that, candidly, there were some lawyers who questioned the appropriateness of using judges as mediators. Among other things, it was pointed out that the skills needed for successful judging do not mirror those required for successful mediating. Despite the fact that judge-conducted mediation is employed in many other states, the sub-committee believed that, to alleviate such concerns, it made sense, at least initially, to reserve judge-conducted mediation for only those cases in which all parties choose to participate. As lawyers and litigants become more familiar with the process – and assuming the process proves worthwhile – there may come a time when it would be appropriate to amend the rule so as to allow a judge to order such mediation even when the parties are not in agreement. Under the rule, assignment of a case to intensive mediation may be made either at the Rule 62 structuring conference or at any time after the structuring conference but at least 90 days before the scheduled trial date. Assignment of a case for intensive mediation later than 90 days before trial is allowed only for good cause. The superior court is in the process of revising its Rule 62 structuring conference form to include a section that will seek information concerning whether a case falls within Rule 170-B and, if so, whether it should be referred for intensive mediation; and, once the rule takes effect, we expect that a discussion of this issue will become one of the issues that the trial judge will routinely discuss with counsel or pro se litigants at the Rule 62 conference. The rule provides that assignment of a case for intensive mediation does not stay or alter the trial date or any other deadlines unless the trial judge specifically so orders. Subsection (C) sets forth certain requirements for the judges who will serve as mediators under Rule 170-B. The mediator can be an active, senior active or retired superior court justice, but cannot be either the judge to whom the case is assigned for trial or a judge who has presided over any pretrial hearings or ruled upon any pretrial motions. However, whether active, senior or retired, in order to serve as a mediator the judge must have completed an approved mediation training program. Again, the training requirement recognizes that just because a person may be a good judge does not automatically mean that he or she will be good at assisting parties to compromise and resolve their disputes by agreement. Subsection (C) also incorporates the terms of current Rule 170(D)(2), (E) and (J). These provisions require the mediator to disclose any conflicts or potential conflicts of interest or any other circumstances which might give rise to a reasonable inference of bias; specify that the mediator is immune from suit for any actions taken in connection with his service as a mediator and, except in very narrow circumstances, cannot be called as a witness in any subsequent proceedings relating to the parties’ negotiations; and adopt Guidelines for Mediators involving such matters as preserving parties’ self-determination during the mediation process, the obligation of mediator impartiality and confidentiality, and the prohibition on a mediator providing legal advice to any of the parties. The rule prohibits the mediator as well as any person who participates in the mediation process from having any communication with the trial judge concerning the mediation or any matter pertaining to the merits of the case. To further insulate the mediator judge from the trial judge, subsection (D) of the rule provides that, while mediation sessions normally shall be held at a court facility, they normally shall be held outside the county or court facility where the case will be tried. Only if there are no other facilities available may the mediation be held in the courthouse where the trial is to take place. Parties must be given at least 30 days advance notice of the date, time and location of the mediation session and of the name of the justice who will be serving as the mediator. Any party claiming grounds to recuse the judge assigned as mediator, must do so within 10 days after the date of the scheduling notice. The rule provides that such motions are to be referred to the judge assigned as mediator for ruling and that the judge’s ruling on the issue of recusal is final and not subject to further review. Subsection (E) of Rule 170-B indicates that mediation under the rule shall be conducted following the same procedures set out in Rule 170(G)(1), (H) and (I). The only differences are that, whereas under Rule 170 the pre-mediation summaries submitted to the mediator and exchanges by the parties may not exceed 4 pages in length, in recognition of the greater complexity of cases governed by Rule 170-B, the latter rule allows the summaries to be up to 10 pages in length. Another difference is that, while the typical Rule 170 mediation is scheduled for a two-hour session, cases mediated under Rule 170-B shall normally be scheduled for at least a full day session. The rule requires the parties, along with their pre-mediation summaries, to provide the mediator with an estimate of the time that will be required to properly mediate the case. Armed with these estimates, the mediator then may exercise his or her discretion to increase or decrease the allotted time from the one-day benchmark. In addition, the rule also allows the mediator to schedule a pre-mediation conference if this will assist in the speedy and efficient conduct of the mediation or resolution of the case. To begin implementation of Rule 170-B, I have initially selected four superior court justices to serve as mediators. They are: Senior Associate Justice Robert E.K. Morrill, and Associate Justices Bruce E. Mohl, Carol Ann Conboy and Timothy J. Vaughan. All of these judges have completed approved mediator training programs, and all but Justice Vaughan have well over ten years service on the superior court. Justice Vaughan has been on the court for three years, but he brings to the task a wealth of experience based on his quarter century as a respected private practitioner in the north country. Depending on the success of the Rule 170-B program, and as more and more judges obtain the necessary training, I expect that more judges will be added to the panel of available mediators in the future. At the outset, it is expected that many, but not all, intensive mediation sessions will be scheduled on the superior court administrative day, which is the third Friday of every month. This will reduce the instances when serving as a mediator will require a judge to take time away from his or her normal in-court assignments. The scheduling of individual cases for mediation will be up to the clerk of the court where the case is pending, working in conjunction with the pool of judges assigned as intensive mediators. In sum, in the words of Chief Justice Broderick, Rule 170-B represents another “off ramp” offered by the Judicial Branch for resolving cases through means other than the traditional adversary process. I urge all lawyers and litigants to avail themselves of this alternative in cases where it is appropriate.
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