Bar News - October 21, 2015
Alternative Dispute Resolution: ADR Coordinator Details Judicial Branch Programs
By: Molly J. Brown
Molly Brown, coordinator of NH Judicial Branch alternative dispute resolution programs, provides helpful info and tips for attorneys
With at least eight different Alternative Dispute Resolution (ADR) offerings for parties in New Hampshire’s various courts, the different requirements for each program can be confusing.
The following is a brief overview of many (although not all) of the state’s court-related ADR programs and includes some tips on to how to successfully navigate these different ADR opportunities.
Supreme Court Appellate Mediation
The NH Supreme Court appellate mediation program is voluntary and provides an opportunity for parties to resolve their dispute after an appeal has been filed, but before transcripts are ordered and before briefing occurs.
If an attorney and client are interested in mediating a Supreme Court case, agreement should first be obtained from all parties involved, then an Appellate Mediation Agreement Form (NHJB-2614-SUP) should be filed with the NH Supreme Court within 15 days of the court’s acceptance order, in accordance with Sup. Ct. R. 12-A(3).
Once the Supreme Court receives the form, it will stay any further processing of the case for 90 days and refer the matter to the Office of Mediation and Arbitration.
Following referral, the court will ask counsel via a Supreme Court Order to send a completed Appellate Mediation Program and Party Information Form (NHJB 2615-SUP) and a completed Party Confidential Mediation Statement (NHJB 2616-SUP), along with payment of $225 per party directly to the Office of Mediation and Arbitration. After all parties have submitted the necessary forms and payment, the office will contact the parties about scheduling.
Who’s the Neutral? Appellate mediators are retired judges and retired full-time marital masters.
Where and When? Appellate mediations occur at the Supreme Court and usually run three or four hours. The Office of Mediation and Arbitration recommends, however, that all parties clear their schedules for the entire day. For more information about the program, search for appellate mediator Deborah Kane Rein’s article, “Appellate Mediation Underused in Family Cases, Despite Success,” published in the November 2014 issue of Bar News at www.nhbar.org.
Superior Court – Rule 32 ADR
In the New Hampshire Superior Court, there is a presumption of ADR in civil cases under Superior Court Rule 32. This rule allows you and your client, in agreement with all opposing parties, to select either volunteer or paid neutrals to conduct the type of ADR most appropriate in your case – mediation, neutral case evaluation, or arbitration.
Attorneys are responsible for working with the other parties to your case to contact a neutral and scheduled the ADR proceeding.
Who’s the Neutral? The Office of Mediation and Arbitration maintains lists of mediators and arbitrators who have been approved by the Superior Court. Many of these neutrals offer their services on both a paid (at their market rate) and volunteer basis, and their resumes and contact information are available on the Superior Court’s web page under the Mediation link.
Where and When? The location of the ADR proceeding and the timing of the proceeding are decided by the parties and/or counsel. This gives more control of the ADR process to the users of the system and helps to streamline the procedures for the Superior Courts.
Circuit Court ADR Programs
Family Division Divorce
and Parenting Mediation
The NH Judicial Branch works to assist parties going through divorce or parenting cases in reaching their own agreements when possible. Agreements reached through mediation reduce the number of cases that return to court, because parties tend to better adhere to agreements they have created themselves.
The Family Division may order cases to mediation regardless of whether children are involved. However, for cases involving children, there is a presumption that the case will go to mediation soon after it is opened. RSA 461-A:7. (For reasons why your client’s case may not be suitable for mediation, see RSA 461-A:7(IV).)
Mediation in cases involving children is most often scheduled during first appearance. Although it is not necessary for counsel to attend first appearance, it is very helpful if the client knows the availability of his or her attorney for mediation at that time. Rescheduling mediation is time-consuming and difficult for the parties, the mediator and the court. The court asks that attorneys try to ensure that a client picks a date and time for mediation that works for the attorney.
Also, the court asks that attorneys help clients complete and submit a Mediation Payment Worksheet (NHJB 2782-F) at first appearance. Having these worksheets filled out accurately before the court issues an Order on Appointment to Mediate ensures that the client will receive all of the financial help he or she qualifies for in order to pay for mediation services. If a client does not qualify for payment of mediation services through the Mediation and Arbitration Fund, or through any available federal grant money, he or she will be expected to pay the mediator at the first mediation session, pursuant to the order on appointment issued by the court.
Who’s the Neutral? Mediators certified by the New Hampshire Family Mediation Certification Board are available to assist parties through this program. Family Division mediators are paid $300 for up to five hours of mediation services, and this expense is usually split between the parties.
Where and When? Although arrangements may be made to hold a mediation session at a different location, most sessions are held at the courthouse. (If there is an issue of domestic violence in your case, mediation must be held at the courthouse). Many attorneys decide to attend mediation with their clients, but it is not strictly necessary. Parties will never be forced to sign an agreement at mediation and will be encouraged by the mediator to have any agreement reviewed by counsel prior to signing.
Whether the attorney attends the mediation or not, he or she should ensure that the client provides an updated financial affidavit to the mediator, as well as to the other party, at least seven days prior to the mediation, pursuant to the standard order on appointment.
Family Division Complex Case Docket
The Family Division Complex Case Docket places a strong emphasis on ADR. For cases the court transfers to the complex docket, there is a presumption that the parties will participate in advanced ADR, usually mediation, co-mediation, neutral case evaluation, or a collaborative law process, depending on the specific needs of each case. Judge Robert J. Foley presides over this docket. (Editor’s note: Look for an in-depth report on the Family Division Complex Case docket in the November issue of Bar News.)
This program is currently in its pilot stage, during which ADR services are offered free of charge to the parties, and the ADR professionals are paid for their services using funds from the ADR fund established under RSA 490-E:4. As the program expands, funding will change for long-term sustainability purposes.
Who’s the Neutral? There are seven contract ADR professionals who work on cases assigned to the complex case docket. They are: Lynn Aaby, Exeter; John Durkin, Nashua; Patti Blanchette, Portsmouth; Meredith Richardson, Kittery, Maine; Joan Gross, Dover; Greg Martin, Nashua; Susan Towle, Concord.
Where and When? The complex case docket is based in Rochester Family Division at the Strafford County Complex in Dover. As part of the preliminary expansion of the program, Judge Foley recently took a slice of that docket workings to Concord. Those cases have been assessed and offered enhanced ADR offerings to allow families to resolve their cases through ADR before the end of the calendar year.
Parties may request mediation for cases pending in the Circuit Court Probate Division. The program is funded through a surcharge on filing fees in Probate Division cases, and mediation services are offered free of any other charge.
ADR services are also offered to cases assigned to the specialized trust docket at no cost to the parties.
Who’s the Neutral? Mediators on the Probate Division roster are trained and experienced in all probate case types, from will and trust disputes to elder guardianships. They have proven extremely successful in settling difficult cases with complex legal and emotional issues.
The court recently established a specialized roster of mediators to mediate cases on the Probate Division Complex Trust Docket.
Where and When? Once a case is ordered to mediation in the Probate Division, attorneys work directly with the court to schedule a mediation session with an available mediator. Mediations may occur at the courthouse or offsite.
Attorneys in cases assigned to the Complex Trust Docket also work directly with court staff to schedule mediation.
Small Claim Cases
The mediation program for small claims cases of $5,000 or less is voluntary. Mediation is mandatory in cases involving $5,001 or more. This program is funded through filing fees and is offered to parties free of charge.
Where and When? With the implementation of e-Court and the new small claim rules, parties to small claim cases attend a mandatory pre-trial conference at which mediation is offered.
Pursuant to District Division Small Claim Rules, attorneys must have at least telephonic access to their client or settlement authority from the client during the pretrial hearing and mediation process. (Small Claim Rule 4.4).
Civil Writ Cases
District Division Civil Writ mediation provides for free, voluntary mediation in civil writ cases. It is an opt-out program in which, upon receiving notice of mediation, attorneys need to notify the court if the client does not wish to participate.
Where and When? These cases are usually scheduled for one or two hour blocks of time at the courthouse.
The New Hampshire Judicial Branch ADR programs offer attorneys and litigants many opportunities to find resolution outside of the traditional litigation route. In 2016 and beyond, the Office of Mediation and Arbitration will expand its programming and continue to evaluate ADR offerings in light of changing technology and case management procedures.
The process and timing for matching cases with appropriate resolution mechanisms also continue to evolve through learning from other states, ADR professionals and program models.
The Office of Mediation and Arbitration welcomes ideas from members of the bench and Bar Association about enhancing existing NH Judicial Branch programs and creating new ones in the months and years to come.
More information, as well as links to all relevant rules and forms can be found on the Mediation and Arbitration page of the New Hampshire Judicial Branch website. Contact the Office of Mediation and Arbitration, (603) 271-6418.
Molly Brown is the ADR coordinator for the NH Judicial Branch.