Bar News - March 19, 2010
ADR Comes to All Court Levels
By: Craig Sander
At the start of a new decade, the Judicial Branch’s Office of Mediation and Arbitration is taking stock of its past successes and is looking toward the future. With alternative dispute resolution programs now at every court level, OMA Director Karen Borgstrom says there’s still more to come.
Created in 2007 with a one-year appropriation from the legislature, and the goal of becoming self funding in future years, the OMA provides centralized development and administration of ADR programs within the court system, as well as training and support. The OMA has met its goal to be a viable self-funded office. While Borgstrom feels that the OMA has accomplished many of the goals initially set for the office to improve delivery of ADR services through the court system, she emphasizes that the office continually strives to improve its existing programs, develop new programs to meet the needs of the public, and to make sure these programs are working well for parties, attorneys and for the court system in general. "We recognize that we can still improve in some areas, but we feel we have made great strides in making high quality ADR options available at all levels of the court system."
Borgstrom believes that ADR and the justice system can provide a well-balanced approach to solving legal problems. "You can have both Alternative Dispute Resolution and the traditional litigation model work well together under the courts’ umbrella. In New Hampshire we have managed to meld private ADR processes with those the court system offers in a way that provides parties and attorneys all of the settlement opportunities they want and need."
ADR programs have been available within the court system, for many years. Prior to the OMA they were overseen by each court administrative office. The OMA brought all of the programs under one roof which made it possible to address, on a more consistent basis, professionalism and training standards for the neutrals on the courts rosters and to ensure that there is a mechanism available for attorneys, the public and mediators to address any concerns they may have with any of the court’s programs. The OMA has been able to address specific administrative issues in its programs around the state to ensure that there are enough well trained ADR professionals for cases at every court level.
Here are highlights of several new ADR initiatives:
In January, the OMA launched a Foreclosure Mediation Program. This voluntary mediation effort provides what Borgstrom calls "an on ramp to the justice system," which, she says, is important since New Hampshire doesn’t have a process for judicial review of foreclosures.
"At no cost to either party, we are able to address a very real concern of both borrowers and lenders who have been affected by the difficult economy. By using the court’s existing infrastructure for this program we can provide a process for lenders and borrowers to restructure loans. The goal is to bring these parties together with a neutral trained to deal with the complexities of foreclosure and its related issues, who can help the parties find a resolution that will work for both. If we are successful, we can keep some borrowers in their homes and make it possible to have lenders to have restructured performing loans rather than vacant homes. " "The response from borrowers and local lenders in particular, has been very positive."
Borgstrom says that the program is a cost effective way for both sides to resolve issues, since it is funded by grants from the NH Housing Finance Authority, the NH Charitable Foundation and the Oleander Jameson Trust.
In a letter to banks and mortgage holders, NH Supreme Court Chief Justice John T. Broderick, Jr. said that despite lenders’ attempts to work directly with borrowers, some borrowers are "reluctant to meet directly with their lenders."
The program was just launched formally in January and cases are now beginning to enter the pipeline, but Borgstrom believes the program is already showing its worth.
"In addition to seeing mediations getting scheduled, we are also starting to see lenders approaching borrowers directly after we’ve followed up with them," she said. "Directly or indirectly, I’d like to think that we’re having an impact.
Last year, the Legislature amended RSA 490-E: 2 to allow the Office of Mediation and Arbitration to create "pre-suit" ADR programs, which Borgstrom says she hopes to extend throughout all of the levels of the court.
So far, the Foreclosure Mediation Program is the only example of a pre-suit ADR program but Borgstrom says that the OMA is looking at other ways to use this option.
Instituted last autumn for non-criminal cases, the Appellate Mediation Program provides mediation opportunities for litigants with cases pending before the Supreme Court. The program allows litigants a final chance to settle a matter before a final decision is made by the Supreme Court.
Borgstrom says that there are a variety of cases well-suited to the Appellate Mediation Program. "People can resolve issues in the program without having the court make the ultimate decision." she said. "Parties have different reasons for wanting to try appellate mediation, perhaps they’re concerned that a decision will get overturned, or perhaps there are complex relationship issues involved that would be better settled between parties."
The program is funded by a $200 filing fee paid by each party, but the fee can be waived in cases of hardship.
To date, more than 20 cases have sought the program, some of which have already resolved.
Cases resolved in the Appellate Mediation Program result in withdrawal of the appeal. When necessary, the settlement is then reviewed by the lower court, which if it approves, then updates the original order.
Neutral Case Evaluation
For just over a year, the OMA has been testing a neutral case evaluation program in the Concord and Lebanon Family Divisions. The pilot project has been especially successful in Concord, said Borgstrom.
Neutral case evaluation ("NCE") uses a neutral third party who hears both sides of a case and then provides feedback to the parties about how they view the case from their experienced, perspective. Like mediation, the proceedings and decision are confidential and non-admissible.
What makes the OMA pilot project unique is that participants use not only trained attorneys neutral case evaluators, but also practicing judges and masters from other jurisdictions.
Borgstrom says that it’s very important for participants to hear "this is what I see," from an experienced attorney, master or judge who has handled similar cases "The process is very effective for complicated cases with property issues and/or complicated parenting issues", says Borgstrom. "NCE can parse through the complexities and give each side a fresh perspective."
The neutral case evaluation program is only available to litigants who have representation. Borgstrom says that having the attorneys involved usually makes a case go more smoothly.
To take advantage of the program, attorneys representing clients in Concord or Lebanon can elect it or the judge may recommend it in a pretrial conference.
Business Court ADR
The new business court docket in Merrimack County has only been in operation for three months. Plans for an ADR component complimentary to the Business court docket have not yet been finalized. The recent bout of damaging storms postponed meetings of a committee working on business mediation programs, but Borgstrom says the group is eager to get back to the task.
District Court: Small Claims/Civil Writ
Though the state’s district courts have had ADR programs for some time, this year the OMA, after passage of HB 281 during the 2009 legislative session, expanded the small claims program to include mandatory in small claims cases over $5,001 Also, due to legislative changes, the OMA also has been able to create a program in District Court Civil Writ cases.
Small-claims mediation sessions usually take no more than 45 minutes per case, and if the case isn’t settled, most go to a hearing on that same day. In small claims cases under $5,001, the program is still voluntary, and people can elect to try mediation or not, as they prefer.
In the Civil Writ cases, mediation is voluntary. Two-hour sessions are scheduled to account for the complexity of the cases. While the Civil Writ Mediation Program is voluntary, it is an opt-out program rather than an opt-in program, which means that every civil writ case is automatically scheduled for mediation, but litigants have the option to opt-out if they want to continue to the hearing process.
Borgstrom says it’s too early to tell whether the program is a success since these new District Court options only began on January 1, but she’s optimistic that the programs will be widely used.
For more information about the alternative dispute resolution programs of the Judicial Branch’s Office of Mediation and Arbitration, visit the office’s website – http://www.courts.state.nh.us/adrp/index.htm – or contact Karen Borgstrom at 603-271-6418.