Bar News - October 19, 2016
Alternative Dispute Resolution: Court Employing Neutral Case Evaluation to Relieve Docket Pressure
By: Hon. Edwin W. Kelly and Molly Brown
Judicial Officers Participating in NCE
Retired Master Deborah Rein
Retired Master Alice Love
Judge Robert Foley
Retired Judge Pam Albee
Judge John Yazinski
Master Tom Cooper
Judge Julie Introcaso
Judge Michael Ryan
Judge John Pendleton
Judge Charles Greenhalgh
Judge David LeFrancois
Referee Philip Cross
Starting this fall, certain parties with active cases in the New Hampshire Family Division will be encouraged to participate in free neutral case evaluation (NCE) as part of an effort to alleviate impending docket pressures caused by a stream of judicial retirements expected in late 2016 and early 2017.
This new NCE program will enlist retired and sitting judges and marital masters to evaluate cases at no additional cost to parties, generally following First Appearance and an initial round of mediation, but prior to the first hearing. Courts in Manchester and Brentwood are expected to be hit hardest by the upcoming reduction in judicial staffing, and therefore parties in these locations are most likely to be asked to participate in NCEs, as well as other forms of alternative dispute resolution, as a part of this effort. However, cases in other courts may also be offered the opportunity to participate in the NCE program. The case selection process is currently based solely on internal review, but if any lawyer with a marital, parenting or brought-forward case scheduled in Manchester or Brentwood after Jan. 1, 2017 is interested in a referral to NCE, the lawyer(s) may contact the clerk of the appropriate court (by phone or in person) and file a motion for NCE with the court to make the request. Those requests will be given a high level of consideration for inclusion in NCE, depending on the availability of judicial officers to conduct sessions.
NCE sessions will usually last three hours. A second session may be offered when requested by the parties. Cases involving attorneys, as well as those with self-represented litigants, will be eligible to participate. In cases that do not involve lawyers, court case managers will assist parties in drafting settlement documents, including parenting plans and final decrees.
Neutral case evaluation is an evaluative process in which all parties to a case have the opportunity to present their claims, evidence and opinions on supporting law to each other and a neutral third party. The neutral will then offer his or her evaluation of the case based on his or her experience. Any evaluation offered is nonbinding and will have no effect on the case should the matter not settle during the NCE. The process offered through this Family Division NCE program is not rigid, however, and the parties may and should use it to create a confidential space to have effective and efficient facilitated settlement discussions.
This process is also completely confidential, which means that nothing said or done during the NCE, including any documents prepared in preparation for the NCE, may be used later in the case for any reason.
The NCE may take place in a courtroom, a conference room, or judicial officer chambers, depending on the circumstances. No record of proceedings will be made. After the NCE has concluded, the judicial officer conducting the session will submit a report to the appropriate court stating whether the case settled (in full, or in part), or not, and no other information will be included. That judicial officer will then have nothing more to do with that case unless the parties request further ADR processes specifically with that person.
The benefits of this NCE process include offering the parties a unique opportunity to settle their case without prolonged and expensive litigation, facilitated by experienced and knowledgeable judicial offers, free of charge. NCE can also provide litigants and attorneys with a realistic idea of what the outcome of their cases may be should they move forward in litigation – a “reality check” of sorts. If the parties do not settle, the NCE may at least provide an opportunity for the clarification of issues or law, allowing for a shorter and smoother path toward resolution of the case.
Moreover, in this situation, NCEs offer parties to Family Division cases an opportunity to move forward with their cases in courts where hearing times are limited and judicial officer resources scarce. New Hampshire family law attorneys are encouraged to take advantage of the process and make the most of this opportunity.
Please feel free to contact Molly Brown
at the NH Judicial Branch Office of Mediation and Arbitration with any questions about NCE or its upcoming role in Family Division processes.
For more information, including a list of the judges who are retiring, please read related article.
Hon. Edwin Kelly
Hon. Edwin Kelly is the chief administrative judge of the NH Circuit Court. Molly Brown is the ADR coordinator for the NH Judicial Branch.