Bar News - October 18, 2017
Court News: Developments in NH Judicial Branch ADR Programs
By: Kristen Senz
Heather Scheiwe Kulp
From neutral case evaluation in family law matters to mediation in NH Supreme Court appeals, the Judicial Branch uses alternative dispute resolution programs to solve problems within the system – such as a shortage of Circuit Court judges – as well as the disputes of the parties it serves. The court is now working to expand some of these programs.
Heather Scheiwe Kulp, alternative dispute resolution coordinator within the NH Judicial Branch’s Office of Mediation and Arbitration, agreed to answer some questions from Bar News about new developments in the court’s ADR programs.
BN: How long have you been in your current position and what did you do before?
HSK: I joined the Office of Mediation and Arbitration at the NH Judicial Branch in January 2017. My work before then focused on practicing and teaching dispute systems design, negotiation, and mediation. I was a lecturer on law, clinical instructor, and clinical fellow at Harvard Law School and Harvard’s Negotiation and Mediation Clinical Program. Prior to joining Harvard, I was a Skadden Fellow at the Resolution Systems Institute in Chicago. There, I consulted with courts and government agencies around the country about designing effective conflict management systems. I confess I am a second-career attorney; my first career was in journalism, managing a start-up media company.
BN: What are your current priorities with respect to the NH Judicial Branch ADR programs?
HSK: The priority of Judicial Branch ADR programs is always to provide the best services possible to the public. ADR adds a number of conflict management tools to the toolbox of any person or corporation who has a dispute. I want each person who encounters the Court to have access to the most efficient, effective, and appropriate process for managing their dispute. So, we in the Office of Mediation and Arbitration think a lot about how to improve each program, and create new ones, with an eye toward increasing access to justice.
At present, I am focusing on monitoring, evaluating, and expanding a few pilot projects throughout the state (see below).
BN: Can you please provide an update on the neutral case evaluation program that began last year for family law cases?
HSK: This past year, Neutral Case Evaluation (NCE) was available in a few family division locations to help alleviate the strain caused by the judge shortage. It was quite successful, so we have decided not only to continue offering NCE, but also to expand it statewide. Beginning in March 2018, any judge in the state may refer a divorce or parenting case to NCE, and any party to such a case may request NCE.
BN: What is the consumer debt docket? What is the plan for rolling it out statewide?
HSK: The purpose of the consumer debt docket, currently in pilot phase in Nashua District Division, is to increase access to justice by offering all parties in a consumer debt case more information and the opportunity to come to a durable agreement before a hearing is held. The consumer debt docket is a district division session for a subset of small claims cases in which a creditor or servicer of debt is suing someone believed to be a debtor. In the session, volunteer attorneys speak to all parties about the law around proof of debt, exempt income, and payment of debt. The volunteer attorneys are then available for anyone to ask general questions. Each case has the opportunity to mediate then and there. Thus far, of folks who attend the consumer debt docket, the vast majority have settled at the session. We will roll out the consumer debt docket in other district division locations throughout 2018.
BN: What is TPR mediation and how can it help children and families? How can lawyers make use of that program?
HSK: The Termination of Parental Rights, or “TPR”, is often a challenging situation for parents. Yet, some termination cases have an adoption on the other side. Thus, the New Hampshire Legislature (in RSA 170-B:14) anticipates that some biological parents, adoptive parents, and the Department of Health and Human Services may have an interest in a Voluntary Mediated Agreement (VMA). A VMA is a way for biological parents to talk with the soon-to-become adoptive parents before the termination. Some people choose to negotiate future visits with the child, an exchange of photos or a birthday present, and other boundary-setting provisions. New protocols will be released in 2018, and we hope parties will seek VMA as a positive and helpful step in the TPR process.
BN: Do you have some statistics you could provide relative to the usage of the various ADR programs? Are there some that you think are underutilized by attorneys?
HSK: I do think attorneys could request referral to, or seek out, ADR earlier in their cases. Thankfully, most attorneys want to be fully prepared for ADR processes in which they participate. What that often means, though, is that they wait until the “eve of trial” to seek another way of resolving the case. To me, ADR is effective for more than just resolution; it offers a plethora of case management tools that could be appropriate at many stages of the litigation process. For instance, a neutral Early Case Manager may be brought in to facilitate attorneys scheduling the internal deadlines by which they will both abide. An E-discovery Mediator could be hired to help attorneys decide which electronic records to request in discovery, rather than wasting precious resources and time – on both sides – sorting through mounds of email for one nugget. An Early Neutral Evaluator might be considered to help attorneys get clear on a legal issue, so they may proceed to negotiate the substance of a divorce.
As for statistics, you can look for an annual report from the Office of Mediation and Arbitration to come out in early 2018.
BN: If you could only provide one piece of advice to an attorney who is preparing for mediation, what would it be?
HSK: Focus on what your client cares about most, not getting your version of the best deal. If your client cares most about seeing her child more, spend most of your energy in mediation thinking through all the options for how she might be able to do that. If you spend three hours arguing about alimony and leave her child to the end, you may have scored points but you will not have served your client as well as you could. This kind of focus means that you have to acknowledge your own interests, too, and recognize that they may not be the same as your client’s. Hopefully, your version of the best deal is the deal in which your client’s primary interests are met very well.
BN: What kind of feedback from attorneys would be helpful to you? How can they get in touch with you?
HSK: It takes all of us thinking about how best to serve the public to make ADR work. Though we have participant feedback forms for all of our ADR programs, we receive very few from attorneys. Without the critical perspectives of attorneys, our programs are not as strong as they could be. I am very open to any feedback on our programs, and especially appreciate suggestions for changes that would improve our service to the public. A bonus for attorneys who choose to provide feedback: I believe that good feedback is a loop and not a line, so I will tell you when we incorporate your feedback into program improvements. You can reach me at by email.
BN: Is there anything else you would like attorneys to know about the Judicial Branch’s ADR programs?
HSK: I think sometimes we get caught up in thinking that ADR is only mediation. ADR is a wide umbrella. There are lots of creative ways to resolve disputes, and I am open to hearing what ideas attorneys have for how the Court can create and improve appropriate dispute resolution processes.