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Bar News - March 7, 2008

Attorneys, Judges Review Advantages, Challenges of New Rule 170


The new Rule 170 alternative dispute resolution program launched Jan. 1 is still in need of mediators – both volunteer and paid – to provide sufficient coverage for civil litigants in the superior courts.

At the “Superior Court Today” CLE program held Feb. 15 at the 2008 NHBA Midyear Meeting, Karen Borgstrom, director of the Judicial Branch’s Office of Mediation & Arbitration (OMA) provided an update on signups for the hybrid program, which provides for both paid and volunteer mediators. As of press time, there were 106 mediators on the paid list (having paid the $350 annual rostering fee), and 160 attorneys who have confirmed that they wish to continue to accept mediations on a volunteer basis. Some attorneys are signed up for both lists.

The Rule 170 program is mandatory in all counties for civil filings, and the OMA is encouraging attorneys to sign up so that sufficient mediators will be available.

Borgstrom also reminded attorneys that existing mediators need to take an eight-hour refresher training (no-cost) that must be completed before Dec. 31, 2008 to be eligible to participate in Rule 170. Newcomers to the Rule 170 program must participate in a 20-hour mediation training at a cost of $275. (See schedule and links below.)

Borgstrom, and Superior Court Chief Justice Robert Lynn said the new Rule 170 program offers advantages of flexibility in scheduling and locations of mediation. Also instead of accepting the mediator that is scheduled to volunteer for court on a particular day, parties select a mediator from the court-approved list, or they may choose to opt out of the court-sponsored mediation program and use a private form of ADR.

“One of the benefits of the new Rule 170 is that mediations do not have to just take place at the courthouse – attorneys holding mediations can schedule them at their offices, making it easier to fit into their schedule,” Lynn said. Mediations will not be the “one size fits all” two-hour mediation session that was the staple of the original Rule 170 program, and can be tailored to fit the needs of the particular case.

However, Chief Justice Lynn noted that the greater flexibility creates complications. “One of the advantages of the one-size fits all ADR at the courthouse was that scheduling was more predictable. The challenge now will be to make sure that the neutral you want is available and not over-committed.” He added that the OMA, created to provide statewide coordination of mediation programs, is charged with keeping an eye on such issues. “OMA intends to keep the courts informed to avoid this problem – I just don’t know if that will happen,” Lynn said.

Lynn acknowledged the controversy surrounding the creation of the new Rule 170 program. Its impetus was to revamp a program where it appeared that participation by volunteers and its effectiveness was slipping. At the same time, the Judicial Branch saw the need for more “off-ramps” or alternatives to litigation for parties. However, many attorneys believed that the program did not need to be totally revamped, and that the new program is supportable by volunteers and that the changes created obstacles to widespread participation by adding regulatory requirements and added costs.

“This is a new program with much potential and some potential to fail,” Lynn said in remarks at the CLE program. “Did we need to change it—it depends on whom you ask. There were no statistics kept, but it appeared that settlement rates had dropped. There also were complaints about the quality of some of the mediators,” Lynn observed, adding that it was not clear to him that the current level of certification training was necessary for the bulk of the mediators in the program. “If neutrals aren’t doing a good job, then they are not going to be chosen,” he said. “I believe that regulation [of ADR providers in the court program] should be fairly non-onerous.”

Judge Lynn also alluded to the decision by Associate Justice Larry Smukler who ruled that a $50-per-party administrative fee, required for litigants opting for volunteer mediation, was unconstitutional. “Can we say that they must do it [participate in ADR} and then require that all must pay?” Lynn asked. “I don’t know.”

In response to a question from the audience, he said that it would be up to individual judges whether they continue to enforce the collection of the $50 fee until there is some definitive word from the Supreme Court.

From a trial management point of view, Justice Tina Nadeau, one of three judges on the CLE panel, cautioned attorneys to have chosen (by mutual consent) a mediator and at least one alternate by the time of the structuring conference. “It won’t be grounds for a continuance if you don’t get the mediator you want if you haven’t picked alternates. We will schedule the trial date,” she said.

Judge Smukler, who wrote the order questioning the constitutionality of a required fee for Rule 170 mediation, did not expound on his ruling, other than to say that he would not bar parties who wanted to pay the fee from paying it.

For information about the program, visit

Rule 170 Mediator Training

These sessions are eligible for NHMCLE credit. There is no fee for the 8-hour refresher trainings for existing Rule 170 mediators and neutrals. Refresher sessions run from 8 a.m. to 5:00 p.m.

8-Hour Refresher Training Dates: March 19; April 17; May 20; June 12; July 23; Aug. 21; Sept. 24; Oct. 15; Nov. 19; and Dec. 3.

Newcomers’ Training:

Those attorneys who are new to the Rule 170 program must complete a 20-hour training program before they can participate in the program. The cost for this training is $275.00, for which they will receive NHMCLE credit.

20-Hour Training Dates:

May 13, 15 & 16 (12:00 p.m. - 8:00 p.m.)
September 16, 17 & 19, 2008 (12:00 p.m.- 8:00 p.m.)
December 9, 10 & 12, 2008 (12:00 p.m. - 8:00 p.m.)

All trainings will be held in Concord, with the location to be determined and confirmed prior to each training date. To register please call or e-mail: Karen Borgstrom, Director at 603-271-6418, ext. 315 or or Lynda Troy, Administrative Assistant at 603-271-6418, ext. 303 or

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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