Editor's Note: The following letter was submitted to the NH Supreme Court Advisory Committee on Rules and is reprinted with the permission of the author.

I write as a superior court mediator, frequent representative of defendants in superior court mediations, and as a member of the committee that drafted the proposed changes.

I support most of the changes recommended by the committee, but have two comments to offer. One regards an area of the committee's proposal with which I disagree, the other is an emphasis of the important interrelationship between certain changes that were proposed.

First, the area of disagreement: I am very much opposed to the proposed change in the rule that would require the presence of insured defendants absent relief from the court. In my experience, the insured defendant has very little to offer to the mediation process. In the vast majority of cases, the presence of the insured defendant is likely to be more of an impediment than it is to aid the case. The parties essential to the settlement discussions are almost always the plaintiff, counsel for the parties and the appropriate insurance adjusters. While the plaintiff's attendance is necessary because it is the plaintiff who is bringing and settling the case, that cannot be said about the defendant. The necessary parties to a settlement from the defense perspective are counsel and the insurance adjuster making the settlement decision. In all but the rarest cases, the insured defendant is simply not a factor in the settlement equation. Adding a nonprofessional, non-participatory party to the mix is not in the best interest of the mediation process.

It is important for the Rules Committee to know that there was significant heated discussion on this point among members of the committee drafting the changes, and that there are certain committee members who feel that this section of the proposed rule was included in great part simply because its proponents talked the loudest and the longest. I would ask that the committee seriously consider deleting this portion of the proposed rule.

I also wish to offer my comments concerning what I feel is the interrelationship between certain changes in the rules: that which presumes cases will be scheduled for mediation absent an agreement or motion for non-binding evaluation and those in the "'good faith" section of the rule. The committee talked at some length about the fact that neutral evaluation under the existing rule has become a de facto opt-out from mediation in many cases in which parties are not going to make offers or are not inclined to change their positions from pre-suit settlement stances. There was much discussion about the fact that this choice is often made to avoid allegations of "bad faith" and the fact that either not making an offer or sticking to a settlement position (whether from the plaintiff or defense perspective) should not be deemed bad faith. I, and other committee members, felt very strongly that the rule should reflect this school of thought, particularly if the rule is going to be amended to presume mediation as the favored form of ADR. I would be very hesitant to support a presumption that cases will go to mediation unless the rule very specifically acknowledges a party's right to hold firm at mediation. I view these two changes as closely related points that should be considered together.

I have spoken at some length with Debra Ford from Devine, Millimet & Branch concerning these issues. As you may know, she was also on the committee. She agrees with my thoughts and has asked me to advise you that she shares my concerns on these two issues.

Dennis Ducharme
Manchester

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