Bar News - February 23, 2007
Judges Available for Mediation of Complex Cases
By: Anita S. Becker
With the retirements of Superior Court Judges Bruce E. Mohl and Robert E. K. Morrill, who also have stepped down from being Rule 170-B mediators, three other judges have been appointed to replace them.
The new mediators are Judges Gillian L. Abramson, Peter H. Fauver, and John M. Lewis. These judges take their places alongside two previously appointed mediators, Judges Carol Ann Conboy and Timothy J. Vaughan. All five judges are available to hear “complex cases.”
According to Superior Court Rule 170-B, Judge-Conducted Intensive Mediation, which took effect February 2006, judges would mediate civil cases “in which the relief sought is monetary damages, a case wherein there is a realistic possibility the damages awarded could exceed $250,000; and in which relief other than monetary damage is sought, a case wherein the trial can reasonably be expected to last more than five trial days.”
“We never anticipated that 170-B would be a high-volume program,” says Judge Robert J. Lynn, chief justice of the NH Superior Court. But, he would like to see attorneys use the voluntary service more often. “This can save attorneys a lot in terms of trial time,” said Lynn. Currently, all parties must agree to the mediation and it cannot be court-ordered. Five cases were heard in 2006. Of them, four settled successfully, within 30 days, without going to trial. The types of cases heard last year included disputes over bank fraud; unfair business competition; tax abatement between a municipality and a non-profit religious organization; business breakup; and environmental penalties.
The 170-B mediation works this way: The parties involved inform the presiding justice where the trial is scheduled that they want to be assigned a judge for intensive mediation. The request may be made anytime after the initial Rule 62 conference but no later than 90 days before the trial date (except for “good cause”).
Mediators can be active, senior active, or retired superior court justices other than the justice to whom the case has been assigned for trial or who has presided over any pretrial hearings or ruled upon any pretrial motions. Mediators must have completed an approved mediation training program prior to being assigned a case. And, the mediation sessions are held at a court facility other than the trial court. Cases assigned under this rule are usually allotted one full day for mediation, but the mediator has the discretion to reduce or increase the time as appropriate.
“The advantage with 170-B is that you get an experienced judge with mediation training that is dedicated to just that case and expects to spend at least one full day, maybe more on that case,” explains Lynn. The longer block of time for the mediation can be an advantage for cases which, because of their size or complexity, are not generally suited for alternative dispute resolution (ADR) under Superior Court Rule 170.
“The Rule 170 mediation program is 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,” Lynn says. However, he adds that the typical Rule 170 mediation is not suited for complex cases because it allots only two hours for each case. “Because the neutrals are volunteers who receive no compensation for their services,” Lynn explains, “it is unreasonable to expect them to dedicate even more of their time to handling more time-consuming cases.”