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Bar News - October 15, 2014

Alternative Dispute Resolution: After One Year, Court to Evaluate New ADR Rules


The new alternative dispute resolution rules adopted by the NH Superior Court last October seem to be working out well for many attorneys who represent litigants in mediation and other forms of ADR, based on anecdotal information. And litigants, generally, perceive the value of the process.

Now that the new rules have been in place for a year, the court is beginning to evaluate the process and the public’s perception of the system. A new, simplified evaluation form is being given to counsel and the litigants at the close of mediation sessions, and the Office of Mediation and Arbitration will consider the returned questionnaires in its evaluation of the public’s perceptions, as well as the views of the bar and the bench.

New Hampshire Superior Court Rules 32, 33 and 34, which describe the forms of alternative dispute resolution under the aegis of the New Hampshire Superior Court, went into effect Oct. 1, 2013. The rules and related forms can be found on the New Hampshire Judicial Branch website.

Here is a brief overview of the new rules:

Rule 32

NH Superior Court Rule 32 describes the ADR process and the qualifications, training and selection of the “neutrals” serving as mediators, neutral evaluators, and arbitrators. Arbitration is specifically governed by Rule 33 and RSA 542.

The process of selecting a neutral is described in detail, as well as the training required to be a qualified neutral.

Per Rule 32, all civil cases in the NH Superior Court are assigned to some type of ADR, with the exception of cases where the parties have represented to the court that they have engaged in some type of formal ADR process prior to filing suit.

Also exempted are cases in which a motion is filed within 180 days of the court ordered service date and a party demonstrate “good cause.” It remains to be seen what New Hampshire judges will consider sufficient as “good cause.”

In addition to the entry fee, a $10 “surcharge” is collected from all civil cases at the time of entry and is deposited in the mediation and arbitration fund established under RSA 490-E:4. There are no longer any “rostering” fees, as existed under the former Rule 170.

Rule 33: Arbitration by Agreement

Rule 32 indicates that all civil disputes will be assigned to arbitration upon agreement by the parties or as mandated by a written contractual provision requiring arbitration. Rule 33 must be reviewed in conjunction with the NH Arbitration Statute, RSA 542, which is specifically referred to in Rule 33.

The parties may choose either a single or a three-person panel. In the event the parties cannot agree on the panel number, a three-person panel will be used for all cases involving claims or counter-claims exceeding $100,000 or cases involving three or more parties. A single arbitrator will be used for all cases involving claims or counter-claims of $100,000 or less. Rule 32 outlines how the arbitrator(s) are to be paid. The parties may select arbitrators who are not on the court’s list of approved arbitrators.

The rule may not be totally clear regarding the role of the arbitrator(s) in discovery disputes. Of particular concern is the potential refusal by a party to answer interrogatories or produce requested documents. It is likely that the court will maintain jurisdiction and exercise authority, despite the “stay” of proceedings, if serious discovery disputes arise, unless the arbitration agreement specifies the clear authority of the arbitrator(s) in lieu of the court’s authority.

Rule 33 requires that all arbitrators, however selected, shall be neutral and serve with impartiality. There are also provisions related to conflicts of interest, the “appearance of conflict,” “reasonable inference of bias,” and potential unavailability disclosure requirements.

Arbitrators, similar to other neutrals, have immunity when serving under Rule 33 per RSA 490-E.

An appeal to the New Hampshire Supreme Court may be taken from an order confirming, modifying, correcting, or vacating an award, or from a judgment entered upon an award, as in the case of appeal from the Superior Court to the Supreme Court.

Rule 34: Judge-Conducted Intensive Mediation

This rule is essentially the former Superior Court Rule 170-B and applies to “complex” cases, which are defined as a case where there is a “realistic possibility” that the damages awarded could exceed $250,000, and in cases where relief other than monetary damages is being sought, and where the trial can reasonably be expected to last more than five trial days.

Upon agreement of the parties, the presiding justice may assign a complex case for intensive mediation, and this assignment can be made at the case structuring conference or any time after the case structuring order has been issued. It should not be made later than 90 days before trial, unless good cause is shown.

The mediator for intensive mediation conducted under Rule 34 must be an active, senior active or retired superior court justice. All justices who serve as mediators under Rule 34 must complete an approved mediation training program. Judge Conducted Intensive Mediation sessions are usually held at the courthouse, but can be held elsewhere, based on availability.

David S. Osman

David Osman has practiced law in New Hampshire since 1972 and is a director of Martin, Lord and Osman, a member of the NH Bar Association ADR Section and a director of the New Hampshire Conflict Resolution Association. He was a member of the court and bar committee involved in redrafting the ADR procedural changes from the former Superior Court Rule 170 to the present Rules 32, 33 and 34.

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