Rules Committee Seeks Input

SUPERIOR COURT RULE 170, which governs the Superior Court alternative dispute resolution program, is among a variety of rules currently being reviewed by the Supreme Court Advisory Committee on Rules. The committee will hold a public hearing on Wednesday, June 26, 2002, at 1 p.m. at the Supreme Court Building, Noble Drive, Concord, to receive input on the proposed amendments to Rule 170 (and a number of other court rules), which the committee is considering for possible recommendation to the Supreme Court.

Copies of the rules proposals are available on request from the secretary of the Advisory Committee on Rules at the NH Supreme Court, Noble Drive, Concord, NH 03301, phone 271-2646. The changes being considered are also available online at http://www.state.nh.us/courts/supreme/proposed/r200204.htm. Written comments on the proposed amendments can be sent to the committee at the above address by June 25.

The following article highlights key proposed changes to Rule 170 and the ADR program that were developed by a committee reviewing the rule. It was written by attorney Robert A. Stein, of the Concord law firm Stein, Volinsky & Callaghan, a Rule 170 volunteer mediator who served as a member of the review committee.

By Robert A. Stein

OUR COMMITTEE MET for roughly one year in various venues to discuss changes to Superior Court Rule 170. There was much debate and open exchange of ideas. In true consensus-building style, all parties were heard and everyone listened. It turned out to be a fascinating and pleasant experience for all.

Though long, the new version of Rule 170 speaks for itself and should be read by each practitioner. I write this article only to highlight several important changes and the basis for each change.

The major change is that the rule now includes only non-binding evaluation, mediation or binding arbitration. The reason for the change is that from custom and practice, it became apparent that very few individuals were choosing non-binding arbitration, and it was, frankly, something that no one completely understood.

There was also protracted discussion as to whether the neutrals should be unpaid or whether we should become full-time, court-appointed, paid mediators. The consensus was that the current voluntary system means the members who volunteer their time see it as an honor to participate, but it also encourages professionalism and an appropriate and proper spirit for the members of the Bar and bench.

An additional new item is Section F(2), which sets out that the mediators "Shall destroy all of his or her notes immediately after the proceedings." The thought behind this mandatory rule is that the mediators will not be called for any purposes (see Section E), and that each party is now mandated to put the agreement reached at mediation in writing before leaving the courthouse (see Section H), with all parties having reviewed and signed the mediation agreement. Consequently, there is no need for the mediator to maintain his or her notes. While there are exceptions to the confidentiality rule, as set forth in Section J, IV(c)(I -3), these exceptions contemplate a waiver of confidentiality or mandatory disclosure as set out by extraneous rules, all of which would occur before the close of mediation.

The issues of excusal of the insured defendant and of the claims representative being present at mediation, neutral evaluation or arbitration were thoroughly discussed. The current rule allows for the non-presence of an insured defendant and of an insurance agent under appropriate conditions, which are now specifically spelled out in the proposed comments regarding excusal of the insured defendant and the role and purpose of excusal of the insured defendant: "In considering any motion to excuse an insured defendant, the court may take into consideration: (1) the issues to be mediated; (2) whether depositions of the parties have been taken; (3) representation by counsel for the defendant that the insurance of the defendant will not materially advance the objectives of the mediation; and (4) the reason for the insured defendant's desire to be excused."

The committee adopted a rule of "good faith" and mandated that the parties, their counsel and their representatives, denoted as "participants," "shall con duct themselves in good faith at all times while participating in mediation under this rule." The committee was clear that "good faith does not necessarily require the making of an offer or the lowering of a demand; neither does good faith necessarily require a change in a party's position during the course of mediation." Comments and examples of good faith are set out under the comments section.

Lastly, the committee adopted as aspirational guidelines a host of nationally published criteria under Section J. It is important to note that these guidelines are aspirational only, but they do offer guidance to the parties, the court and any third party regarding the purpose and goal of mediation.

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