BACKERS SAY HB 706, which rapidly moved through the Legislature during the last legislative session, will have a positive effect on the lives of children affected by disputes between their parents. The bill was signed into law by Governor Jeanne Shaheen last month and takes effect next July.

The bill empowers NH Superior Court judges and masters to order mediation in cases "involving disputed legal or physical custody of children, physical custodial rights, or grandparents’ visitation rights, including requests for modifications of prior orders." Excluded are cases involving allegations of abuse or neglect, domestic abuse, or findings of alcoholism or drug abuse on the part of either party. The bill also provides that in cases in which the parties are indigent, mediators will be paid by state funds administered by the Judicial Council, although the bill does not provide new funding.

The bill limits the authority of judges to order mediation, however, by requiring the consent of all parties. Peter Wolfe, who coordinates the superior court’s Rule 170 Alternative Dispute Resolution program for civil cases, said the bill nevertheless represents important progress in advancing the role of mediation by explicitly identifying it as the preferred means of dispute resolution in domestic relations cases. It is significant, Wolfe pointed out, that once mediation is established, it will apply to all issues relevant to the case, not only the issues directly related to child custody or support.

Mediators certified under RSA 328-C will conduct mediation. Marital Master Debra Kane Rein, who hears cases primarily in Merrimack County, said this new program has a better chance of success than a pilot program tried in her court that called for voluntary "neutral evaluation" of marital cases. That process was offered at the option of the parties, but has provided too limited a role for mediators and was thus overlooked and under-utilized.

Superior Court Judge John Lewis said the new law will make judges and the disputing parties more aware of mediation as an option in divorce cases, and has the potential to reduce legal and court costs and resolve disputes faster and more effectively. Research shows that matters settled through mediation, compared to those resolved by a judge’s decision, are less likely to result in refilings or protracted disputes in the future, said Wolfe, who also chairs the Bar’s Alternative Dispute Resolution Section. In fact, the potential for cost savings in family matters motivated the NH Judicial Council to back the legislation even without additional funding. The expectation is that more widespread mediation in the marital area will lessen somewhat the cost of guardians ad litem paid for through the Judicial Council’s GAL fund. Wolfe said mediation fees are likely to amount to much less than those paid to GALs to conduct investigations, make appearances and testify in highly contested cases.

With implementation beginning in July 2003, the next step will be for judges and masters to develop protocols and conduct training to ensure that mediation becomes a viable option in many more marital cases involving children, said Master Rein.

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