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Bar News - January 15, 2010


Alternative Dispute Resolution: Arbitration - A New Hampshire Alternative

By:

Many and various contractual relationships contain arbitration clauses. The intent of an arbitration clause is to have the dispute between the parties resolved by an arbitrator or panel of arbitrators rather than a judge and/or a jury. Such clauses may address the tribunal to serve as the administrator or adjudicator of the dispute - some do not. Those clauses that reference a tribunal often select a national or regional arbitration company. While such companies may be adequate, they can result in high administrative charges, time delay in dealing with a company’s selection of arbitrators and scheduling protocols, and/or an unacceptable panel of arbitrators.

New Hampshire disputes have an alternative to the national or regional tribunal. New Hampshire Superior Court Rule 170-A allows parties to a dispute both pre and post the filing of a lawsuit to consent to an arbitration process to be governed by the Rule and administered through the Judicial Branch Office of Mediation and Arbitration. Thus, the parties can insert in their contractual arbitration clauses that "disputes under the contract will be resolved by arbitration under New Hampshire Superior Court Rule 170-A," thereby obviating the need to file a lawsuit or discuss after the fact what tribunal to utilize. If a dispute arises between parties who do not have contractual arbitration clauses by agreement pre or post the lawsuit, the parties can elect to utilize the Rule 170-A process by making a written request, together with a payment of a per party $250 administrative fee. The total administrative fee for the entire dispute is $250 per party.

Arbitration vs. Trial

A key reason why parties prefer arbitration to a trial is the belief that an experienced arbitrator should lead to a better understanding of the facts and contentions, should allow for an accelerated presentation of evidence, and should result in a more thoughtful decision and award. It is therefore crucial that the parties have the opportunity to select the arbitrator(s). Rule 170-A gives the parties great flexibility but, ultimately, a process of guaranteeing timely selection of the arbitrator(s). The parties can agree to a single arbitrator or a panel of thee arbitrators. If the parties cannot agree on the number of arbitrators, the panel will consist of one arbitrator on cases involving claims or counter-claims of less than $100,000 and three arbitrators on cases involving $100,000 or more. The parties can agree on who the arbitrator or arbitrators will be; however, if they cannot, on the filing of a Stipulation, the Superior Court will select the arbitrator(s).

Thus, the number of arbitrators and who the arbitrators are can generally be controlled by the parties. This allows the parties to consider the experience of the arbitrators and weigh the cost of paying a single arbitrator or paying three arbitrators; but, a recalcitrant participant cannot unilaterally delay the selection because the Superior Court can be called upon to make the selection if needed.

The conduct of a Rule 170-A arbitration hearing is controlled by the arbitrator(s). The panel may issue subpoenas, limit repetitive evidence, and expedite the hearing by not insisting upon strict conformity with the New Hampshire Rules of Evidence. A more expeditious process should be a less costly process.

Parties May Seek Further Redress

Unless the parties otherwise agree, the decision entitled "The Report of Award" is subject to confirmation and entry of judgment or appeal to the New Hampshire Superior Court. Both winning and losing parties have the ability under a Rule 170-A arbitration hearing to seek further redress if deemed necessary. What this means is that the award, if confirmed, can be turned into a judgment with the attendant right to post-judgment attachments and executions. It also means that, if an obvious error of law has been made, the error can be overturned and corrected by the Superior Court.

New Hampshire companies and individuals should give consideration to the availability of a New Hampshire arbitration forum for resolving their disputes.

William A. Mulvey, Jr. of the Mulvey Professional Association in Portsmouth, NH, may be reached at 603-431-1333 or by e-mail at mulveyw@mulveypa.com. He has served as an arbitrator and mediator for the past 20 years and a litigator for the past 33 years throughout the Northeast.

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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