Bar News - July 18, 2008
Office of Mediation and Arbitration Reaches One-Year Anniversary
By: Karen Borgstrom
July 1 is the first anniversary of the court-requested and legislatively-created Office of Mediation and Arbitration (OMA).
It is an understatement to say that the office has had a busy first year. With the help of a great many individuals from both inside and outside the judicial branch, we have successfully brought under one roof the administration of all of the courts’ dispute resolution programs.
The mission of the OMA is to make the alternative dispute resolution program within the judicial branch an efficient, effective and useful part of the court process both in terms of cost and results. We are now administering ADR programs in Family Division, Voluntarily Mediated Adoptions, District Court Small Claims, Probate Court, and Superior Court.
OMA has been working to develop programs or support ADR in administrative agencies and in the new business court docket. In 2009 we hope to bring a new program on line: ADR at the appellate level. Experienced mediators like Terry Shumaker stress "that mediation and arbitration are flourishing in the ‘so-called’ private justice system and there is no reason that the New Hampshire courts cannot provide ADR services of equal or better quality at lower cost to our citizens."
The office is proud of its accomplishments. However, there is much to be done. This is particularly true with regard to the Superior Court Rule 170 program. Many ADR professionals, lawyers and judges have weighed-in on how they think the new system is working. While the feedback about the program, quite frankly, has been mixed, I am heartened by the willingness of those using it to allow for a period of time to get any process glitches worked out. This may take some months, particularly since the temporary rule only went into effect in January of this year and the structuring conferences associated with any new 2008 cases only began to be scheduled, in earnest, last April.
Therefore, I welcome Judge Lynn and the superior court judges’ recommendation to the Rules Committee to extend the rule’s temporary status as beneficial. Such an extension would give us the time and the data to determine whether the changes to the rule are meeting the original goals that were identified by the ADR steering committee that developed the revamp of Rule 170 as necessary to make the program more effective.
The mandate from the committee was that the OMA office, once created, should help streamline, make more efficient and more effective, all court sanctioned ADR programs. The committee had two goals in mind at the time it reviewed and proposed changes to the superior court Rule 170 program. One goal was to find a way to make the OMA self-funding and sustainable after the initial one-year appropriation from the legislature ran out. The second goal was to find a way to take a good, but underutilized, program and maximize its use throughout the ten counties in the state.
Finding a mechanism to financially support the office (in addition to the already established programs with filing fee surcharges), by asking for ADR professionals who are now able to charge market rates in the Rule 170 program to pay a rostering fee to help make the office self-funding in year two and beyond, was one of the important links between the OMA and its Rule 170 program. We made adjustments along the way to ensure that the volunteer part of the program would continue to be an integral part of the process; thereby encouraging the strong spirit of volunteerism that is so much a part of the legal and ADR community in our state.
In reaching out to a variety of individuals about their satisfaction with the original rule, the committee learned that users of the program, while not unhappy, suggested that the program could be more effective if flexibility in all aspects of the program was part of its underlying premise. Allowing, for example, cases to be mediated either at the court house or at an off-site location, could be extremely beneficial for neutrals in small firms who volunteer their time and would then not have to travel to a court to provide services. Allowing counsel, the parties and the neutral to determine the length of the process, and the type of process (neutral case evaluation, mediation or arbitration) could provide a more realistic time frame for cases in order to develop settlement scenarios. Permitting the parties and counsel to choose the neutral they felt was the best fit for their case was also seen as a positive change. Essentially, the committee learned that giving control of the ADR process to the folks who are the hands-on users of the program would enhance the process and make it more effective, thus increasing the chances of resolution.
It is important that the legal community know this "back-story" of why the Rule 170 program was revamped. Since the future of the OMA is, in part, directly connected to the success of the Rule 170 program, it is critical that the program work well. It is of paramount importance to everyone who is involved in the administration of justice that our ADR programs thrive in concert with our court system. It is essential that our citizens have confidence that when they are involved in any Court ADR programs that they will have experienced, well-trained, ethical ADR professionals in their cases, as well as a fair process.
I believe that the Rule 170 program can best meet this goal by listening carefully to the constructive criticism of the program from those directly involved in it and by making the changes necessary to make the process better and more understandable for users.
Indeed, we have recently had comments from a variety of neutrals in the program who have experienced problems involving scheduling or use of the courts’ forms. We have also had feedback from court staff about concerns they have about making sure the ADR reports are submitted by neutrals, so the courts know when a case has settled. On the other hand, we have also heard from a number of neutrals who like the process, and who think, ultimately, it will work well. What everyone seems to agree on is that change takes time and effort. Change is difficult, even in the best of circumstances but, as Benjamin Disraeli said, "In a progressive country, change is constant."
Since New Hampshire legal and ADR professionals can be counted on to be very collegial, I trust you will work with the judicial branch and the OMA to give us the time we need to address your concerns. We will be providing you periodically with updates and helpful hints, based upon your feedback, to make the program run as smoothly as possible. We thank you for your patience and for a chance to make this program a model for court-annexed ADR.
Karen Borgstrom is the director of the NH Judicial Branch Office of Mediation and Arbitration.