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Bar News - August 10, 2007

Major Changes Seen for Rule 170 ADR Program



Court officials say they are keeping an open mind on whether to replace the current Rule 170 program, now in four counties, with a statewide program that would use attorney mediators paid at market rates by the litigants. The current volunteer-based program, which started in the early 1990s with wide attorney participation, in recent years has declined in its effectiveness, court officials and lawyers agree.


The idea of converting to a paid-mediation model for a statewide program is the concept behind a comprehensive rewrite of Superior Court Rule 170 that has been released for public comment by the Supreme Court Advisory Committee on Rules. It was developed by a Statewide ADR Services Committee, chaired by Associate Justice Linda Dalianis. The comment period for the new rule, which ends Aug. 31, has prompted a number of attorneys to criticize the idea and to rally behind the idea of rejuvenating the volunteer-based approach to mediation of civil cases.


“We are not wedded to a particular model – paid or volunteer,” said Chief Justice John T. Broderick, Jr., who met recently with some of the critics of the rule change. “We are committed to an outcome – a mediation program that works and a program that is available in all 10 counties. If it can be done with volunteers, we would be disposed to do that – if the bar is in support of that.”


Bruce Felmly, of the McLane, Graf & Raulerson law firm, who has been among the most active critics of the new Rule 170 proposal, raised the issue with the NHBA Board of Governors in a letter last month. (See also a more detailed memo attorney Felmly submitted to the Court.) As a result of the discussion at the Board meeting, and in response to concerns expressed to her by other attorneys, NHBA President Eleanor Dahar asked the Rules Committee to extend the comment deadline to Nov. 30 to provide ample time for discussion.


Broderick and Karen Borgstrom, the newly appointed director of ADR programs for the judicial branch, said extending the comment period may not be necessary; instead, depending on the comments received as of the deadline date, the Court may decide to rework the proposal, with the goal of expanding the program statewide, revising the training requirements to be not so onerous for those who already are experienced at mediation, and making the process a more effective and credible option for litigants.   


The Rule 170 program, named after the Superior Court Rule authorizing it, began in 1991 under the direction of then-Superior Court Chief Justice Joseph DiClerico, who worked with Sullivan County Superior Court Clerk Peter Y. Wolfe to implement it. At that time, the superior court’s civil docket was clogged and delays were commonplace, and the use of court-sponsored ADR was seen as a partial remedy. Under DiClerico and his successor, Chief Justice Joseph P. Nadeau, the program attracted many lawyers as volunteers in the four target counties. The use of Rule 170 mediations (or other forms of ADR available under the rule) began to make significant inroads into civil case backlogs in the superior courts in the mid-1990s. At one point, the NH Superior Court received acclaim as the No. 1 trial court system in the country as measured by its disposition of cases, according to the National Center for State Courts. Rule 170 was credited with helping to ease those backlogs, and to help many litigants resolve their cases with less expense and in less time.


However, without adequate support – Wolfe oversaw the program while continuing in his position as Sullivan County Clerk with scant funding for training or administration —the program gradually began to wither. Borgstrom, formerly in private practice in Lebanon, who participated as a Rule 170 volunteer, said she inherited a list of Rule 170 attorney-mediators that was significantly outdated. Procedures for arranging mediations and ensuring participation of all of the decision-makers in a case are inconsistent among counties. 


The current Rule 170 program, proponents of the new rule and the critics of it agree, needs more attention. Training is needed. Evaluation and measurement of outcomes are both needed. Recognition of the contributions made by the volunteers – both to reinforce its importance to litigants to encourage volunteerism—is needed. Felmly said it is ironic that the Court was considering moving away from the voluntary model “at the very time when the resources [Borgstrom’s statewide mediation office] became available to help the program succeed.”


Despite the enthusiasm for a reviving the volunteer model for Rule 170, a major question remains open: Are there enough volunteers to make the program successful statewide? No one knows. Borgstrom said one of her next tasks is to determine how many civil cases would be submitted for ADR with Rule 170 mandatory statewide.


Felmly acknowledges that there may not be enough volunteers in some of the smaller counties for all of the cases, but suggests that if the program is made more flexible, the volunteers can be found. For example, if Rule 170 mediations for several small cases were scheduled together at a lawyer’s office, that might make it easier for a volunteer from another county to handle cases from a volunteer-short county.


Chief Justice Broderick said the court system, to remain relevant to citizens, must offer effective alternative dispute resolution options. While the Court can be flexible about some aspects of a new Rule 170 program, it is necessary that it be available to all litigants in the state, he said. 



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