Bar News - July 17, 2009
Arbitration an Important Part of Court-sponsored ADR
By: Karen Borgstrom
Editorís note: The following article is Part 2 of An Update on Discussions at ADR Brown Bag Sessions. Part 1 appeared in the June issue of Bar News.
OMA Brown Bag Lunch Series
The Office of Mediation and Arbitration has been seeking input about how the court-annexed mediation program is working for attorneys and their clients, for pro se parties, mediators and the courts.
The NH Family Division has been holding brown bag lunches to help in this evaluation. There are still a few opportunities for attorneys to attend one of these lunches.
Contact Lynda Troy or call 603-271-6418 x303 if you would like to sign up for one of the remaining programs.
Program Dates and LocationsThursday, July 23 Portsmouth Family
(All programs are from 12:00 to 1:00 p.m.)
Tuesday, July 28 Ossipee Family (w/Conway)
Monday, August 3 Dover Family
Since March 2009, the Office of Mediation and Arbitration (OMA) has been carrying out an initiative designed to explore how well the mediation program is working in the court-annexed program in Family Division and in the Superior Courts where Family Division has not yet been rolled out.
Although the primary focus at the brown bag lunches has been mediation, the OMA has also been discussing other ADR methods such as neutral case evaluation ("NCE") and arbitration.
542:11 Arbitration of Domestic Relations Cases
New Hampshire has had an arbitration option available in family cases since 1991. RSA 542:11 provides:
I. The parties to any contested issues in a domestic relations case in superior court may file a stipulation prior to trial in which the parties and their attorneys, if any, agree to submit the case to arbitration. Upon the approval of the court, said stipulation shall be considered an agreement in writing to submit to arbitration within the scope of RSA 542:1. Filing of the stipulation shall stay the trial of the suit until arbitration has been had in accordance with the terms of the stipulation.
II. The parties shall select an arbitrator who shall be an attorney licensed to practice law in the state of New Hampshire. The stipulation to submit to arbitration shall include the name of the arbitrator.
III. The parties shall be solely responsible for all fees and costs of arbitration.
IV. The stipulation to submit to arbitration shall include all outstanding issues which have not been resolved by prior court order or court approved stipulation.
V. The arbitrators shall issue written findings on all issues of law and fact.
VI. The arbitratorís decision and findings shall be submitted to the superior court and shall have the same effect as the report of a marital master.
VII. RSA 542:1, relative to validity of arbitration agreements, shall apply to this section when such agreements have been approved by the superior court.
VIII. The following provisions shall apply to arbitration under this section:
(a) RSA 542:2, relative to stay of proceedings brought in violation of arbitration agreements.
(b) RSA 542:3, relative to remedy in case of default; jurisdiction; proceedings.
(c) RSA 542:6, relative to depositions.
IX. RSA 542:5, relative to witnesses, and RSA 542:7, relative to awards, shall apply to this section, except that there shall be only one arbitrator appointed.
X. Any arbitration under this section may be terminated by the written agreement of all parties or at the written request of the arbitrator, in which case the matter shall be returned to the superior court.
XI. Unless inconsistent with this section, all provisions of law relative to domestic relations shall apply to a proceeding under this section.
XII. Nothing in this section shall restrict the court from enforcing existing orders, or granting and enforcing emergency orders.
Source. 1991, 88:1, eff. May 13, 1991.
Special Training Available
In effort to ensure that anyone who chooses arbitration as an option in either a domestic or superior court civil case will be assured of an excellent process, the OMA has undertaken to provide special training for arbitrators through the American Arbitration Associationís training arm, AAA University. The first OMA-sponsored arbitration training took place in March and will be followed up with a series of on-line webinars which are intended to focus on specific additional topics for arbitrators. For those interested in learning more about how to select arbitration in family cases, please contact the Office of Mediation and Arbitration.
The OMA welcomes and invites on-going feedback on all of its initiatives. To provide your views on these or any other OMA programs, please contact Karen J. Borgstrom, director, Office of Mediation and Arbitration at email@example.com or call her or her assistant Lynda Troy at 603-271-6418, ext. 315.