In a ruling issued Jan. 10, 2008, Superior Court Associate Justice Larry Smukler ruled as unconstitutional a mandatory fee of $50 per litigant for participation in the Rule 170 alternative dispute resolution program.

Rule 170, revised to make the ADR process mandatory and statewide for all civil cases, became effective on Jan. 1, adopted as “temporary.” The new Rule 170 allows for parties to elect to pay for a mediator of their own choosing, or to allow their case to be mediated by a volunteer – in which case, each litigant is required to pay a $50 administrative fee.

In the order, Judge Smukler wrote:

“Indeed, the imposition of mandatory ADR as established by Temporary Rule 170… is recognition of the critical place such procedures have in the dispute resolution process. Thus, the rule requires litigants to pay a fee for access to an adjudicatory official, without the presence of alternative options.”

The four-page order is posted on the Bar’s Web site.

A spokesperson for the Judicial Branch indicated that Judge Smukler’s order has been referred to the NH Supreme Court General Counsel’s office.

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