Superior Court Rules Table of Contents
170. ALTERNATIVE DISPUTE RESOLUTION (ADR)
(A)
Cases for Alternative Dispute Resolution.
(1) All writs of summons, transfers of actions from
the district court, and such equity cases as the court may deem or the parties
may agree are suitable, shall be assigned to ADR, with the exception of those
exempted in paragraph (2).
(2) The following categories
of civil and equity actions are exempt from the requirements of this rule.
(a)
Actions by or against or appeals taken from decisions of the state, counties, or
municipalities (including their subdivisions, departments, agencies, boards, and
agents), except where the action contains a claim for personal injury or
monetary damages, unless the parties agree to ADR and the court approves.
(b)
Actions where the parties represent by joint motion that they have engaged in
formal ADR before a neutral third party prior to suit being filed.
(c)
Actions exempted by the court on motion and for good cause, but only when said
motion is filed within 180 days of the return date.
(B)
Election of Specific Alternative Dispute Resolution Procedure and Selection
of a Neutral.
(1) Promptly after the
filing of an answer or appearance in the superior court or upon removal from the
district court, the parties shall confer and select an ADR process (that is,
mediation, neutral evaluation, or arbitration) and a neutral third party to
conduct the process. If the parties
cannot agree on the ADR process, they will be required to submit to mediation.
(2) The parties shall select
a neutral third party to conduct the dispute resolution process from the court
lists of approved neutrals. Prior to making such a selection, the parties shall determine
whether they wish to select a neutral from the list of approved volunteer
neutrals, or from the list of approved paid neutrals.
(a)
If the parties choose a neutral from the list of approved paid neutrals, the
parties shall notify the neutral and request that the neutral provide the
parties with a schedule of fees and expenses.
(b)
Unless the court orders or the parties otherwise agree, the neutral’s fees and
expenses shall be apportioned and paid in equal shares by each party, and shall
be due and payable according to fee arrangements agreed to directly by the
parties and the neutral. Fees and
expenses paid to the neutral shall be allowed and taxed as costs in accordance
with Superior Court Rule 87(a).
(c)
If the parties choose a neutral from the list of approved volunteer neutrals,
the parties shall be subject to a one-time administrative fee of $50.00 per
party, which shall be paid to the court at the time the Stipulation for ADR is
filed with the court. This is an administrative fee which will be
designated for use by the Office of Mediation and Arbitration and is not
refundable. Parties who are indigent may petition the court for waiver of
the $50.00 administrative fee.
(d) Parties may select a neutral who
is not on the court’s lists of approved neutrals if the parties agree on the
choice of the neutral.
(3) If the parties cannot agree on the selection of a
neutral, they shall so indicate in their Stipulation. The court shall
designate a neutral at the structuring conference. If the parties have not
selected an ADR method and neutrals by the time the structuring conference
occurs, the court shall, at the structuring conference, set a date certain by
which ADR shall have occurred.
(C)
Stipulation and Court Order for Alternative Dispute Resolution.
(1) No later than ten
days prior to the initial structuring conference provided for in Rule 62(I), the
parties must file with the court a comprehensive written stipulation, signed by
all counsel, or by parties if unrepresented, containing:
(a)
An agreement to seek resolution of the issues involved in the action by
designating one or more of the following alternative dispute resolution methods
to be carried out as provided in this rule:
i. Mediation;
ii. Neutral Evaluation;
iii. Binding Arbitration; or
iv. Any other method of
dispute resolution agreed upon by the parties.
(b)
The designation of a Rule 170 neutral, to serve in the agreed-upon process, or
an agreement to accept a neutral chosen by the court from a list provided by the
clerk. However, prior to the designation of a Rule 170 neutral to serve in
the agreed upon process, the parties or counsel (if parties are represented)
shall contact each other in the first instance and agree upon a neutral and two
alternates. They shall appoint one person to contact the neutral, or if
need be, the alternates, to determine if the neutral is willing and able to
serve and whether it will be on a volunteer or a paid basis.
(c)
A schedule for the completion of the agreed-upon ADR process including the
filing of case statements and the completion of any necessary discovery, or
including the agreement to accept the assistance of the neutral designated under
subparagraph (C)(1)(b) in setting a schedule for completion of the process. The schedule must provide for completion
of the process within the shortest possible time after filing of the
Stipulation, consistent with completion of the minimum amount of discovery
necessary to make the process meaningful, but in any event not more than eight
months after the date of the Stipulation.
(d)
The location of the session and a date by which the session shall have occurred.
(2) The court may
waive the initial structuring conference if, prior to the structuring
conference, the court has received a completed and signed Rule 170 stipulation
and a completed and signed Structuring Conference Order. If the court has
not received either or both of these documents, then at the initial structuring conference,
after consultation with counsel, or with parties if unrepresented, the court
shall issue an order stating: (a) the specific ADR
procedure to be used; (b) the identity of, and contact information for,
the neutral; (c) the date by which the ADR procedure must be completed; (d)
whether the ADR shall be at the courthouse or off-site; and (e) the anticipated
time needed for the ADR method chosen. If
the court chooses a neutral from the volunteer list, the court shall order the
parties to pay a one-time administrative fee of $50.00 per party.
The court has discretion to waive this fee if
the parties are indigent. At the request of the parties for good cause,
the court may also permit an individual $50.00 fee to apply to multiple
plaintiffs or defendants, if under the circumstances of the case, the court
determines that the per party fee would cause undue hardship if it were applied
to individual parties, or if one fee for multiple parties on the same side is
deemed equitable by the court.
If the neutral is chosen at the structuring conference either
by the parties and counsel or by the court, the parties and counsel shall,
within 10 days after the date of the structuring conference, contact the neutral
or the alternates, if necessary, and schedule the ADR session with their choice
of neutral.
Except for the date by which the ADR procedure must be
completed, the structuring conference order regarding ADR may thereafter be
amended by agreement of the parties by filing an amended Stipulation with the
court. The court may permit an
extension of the date by which the ADR procedure must be completed on the motion
of either party for good cause shown.
(3) Upon receipt of notice of
appointment in a case, the neutral shall disclose any circumstances likely to
create a conflict of interest, the appearance of a conflict of interest, a
reasonable inference of bias, or prevent the process from proceeding as
scheduled. If the neutral withdraws, has a conflict of interest, or is otherwise
unavailable, another shall be agreed to by the parties or appointed by the
court.
(D)
Alternative Dispute Resolution Proceeding.
(1) Upon receipt of the structuring
conference order, the parties or their counsel shall confirm the date, time and
location for the ADR to take place and the neutral shall advise the parties in
writing of the schedule for submission and exchange of summaries. Unless the neutral advises otherwise,
each party shall exchange a summary, not to exceed five pages, of the
significant aspects of their case. The parties may also attach to the summary
copies of pertinent documents. Upon receipt of a party's submission, any party
may send additional information responding to that submission. Unless the
neutral advises otherwise, all submissions shall be exchanged with opposing
counsel and shall contain a statement of compliance with the exchange
requirement.
(2) Thirty days before the date of the first
scheduled ADR session, each party must certify to the neutral that party’s
readiness to proceed on the scheduled date or request that the neutral
reschedule the ADR session. At any
time, upon written request of a party for good cause shown, the neutral may
reschedule the ADR session for a date prior to the date set forth in the
structuring conference order for completion of the ADR proceeding.
(3) All parties and their
counsel must attend a scheduled ADR session, unless the court, for good cause,
excuses an individual from participation or authorizes an individual to
participate by speaker telephone. A corporation, partnership, or other entity
that is a party, and a liability insurer that is defending the action, must each
be represented by a person, other than outside counsel, who has settlement
authority and authority to enter into stipulations. With the agreement of all parties and
the neutral, any person having an interest that may be materially affected by
the outcome of the proceeding may be invited to attend the session in person or
by counsel.
(4) Within 15 days after the
conclusion of an ADR proceeding, other than binding arbitration, the neutral
must report the results of the process to the court in writing. The report may not disclose the neutral’s
assessment of any aspect of the case or substantive matters discussed during the
session or sessions except as is required to report the information required by
this paragraph. The report must
contain the following items:
(a) The date on which the session or sessions were
held including the starting and finishing times;
(b) The names and addresses of all persons
attending, showing their role in the session and specifically identifying the
representative of each party who had decision-making authority;
(c) A
summary of any substitute arrangement made regarding attendance at the session;
(d) The results of the session, stating whether full
or partial settlement was reached and appending any agreement of the parties;
(5) In any action in which
ADR does not result in a settlement, the action will proceed in accordance with
any agreement reached in the ADR process, or in the absence of an agreement, as
ordered by the court.
(6) ADR proceedings shall not
stay, alter, suspend, or delay pretrial discovery, motions, hearings, or
conferences nor the requirements and time deadlines of New Hampshire Superior
Court Rules 62 and 63.
(E)
Inadmissibility of Alternative Dispute
Resolution Proceedings.
(1) ADR
proceedings and information relating to those proceedings shall be confidential.
Information, evidence, or the admission of any party or the valuation placed on
the case by any neutral shall not be disclosed or used in any subsequent
proceeding. Statements made and
documents prepared by a party, attorney, or other participant in aid of such
proceeding shall be privileged and shall not be disclosed to any court or
arbitrator or construed for any purpose as an admission against interest. All
non-binding ADR proceedings are deemed settlement conferences consistent with
the Superior Court Rules and Rules of Evidence.
In addition, the parties shall not introduce into evidence in any
subsequent proceeding, the fact that there was an ADR proceeding or any other
matter concerning the conduct of the ADR proceedings except as required by the
Rules of Professional Conduct or the Mediator Standards of Conduct.
(2) Evidence that would otherwise be
admissible at trial shall not be rendered inadmissible as a result of its use in
an ADR proceeding.
(F)
Sanctions.
If a party or a party's counsel fails without good
cause to appear at an ADR session scheduled pursuant to this rule, or fails to
comply with any order made hereunder, the court may, on its own or upon motion
of a party, impose any sanction that is just under the circumstances.
(G)
Qualifications of and Approval Process for Neutrals.
(1) Qualifications of
Neutrals
(a)
Good standing. All neutrals
(neutral evaluators, mediators, arbitrators) must be attorneys admitted to
practice in New Hampshire who are in good standing.
(b)
Moral character. Neutrals must be
of good moral character and adhere to any standards of practice for mediators
acting pursuant to these Rules adopted by the Supreme Court.
(c)
Disclosures. Applicants must
disclose criminal convictions or findings of professional misconduct, which have
not been annulled. The Administrative Council may refuse to approve an applicant
who has been convicted of a criminal offense or has been found to have committed
professional misconduct. Failure to
disclose complete and accurate information may constitute grounds for
decertification.
(d) Specific Requirements.
(i) Mediators -- All Rule 170 mediators must have at least 20 hours of
training in civil mediation. The
20-hour training shall consist of at least 14 hours of course material, either
sponsored by, or approved by, the Office of Mediation and Arbitration, along
with at least 6 hours of mentoring time in mediating case(s) with an approved
Rule 170 mediator/mentor. The
20-hour training requirement may be satisfied by way of training provided by the
Office of Mediation and Arbitration for a fee, or the mediator may provide to
the Office of Mediation and Arbitration documentation of equivalent training,
subject to its approval. A
mediator/mentor must be approved as a mediator/mentor by the Administrative
Council before serving as a mentor.
New Rule 170 mediators shall be subject to the 20-hour training
requirement. All mediators who were
on the court’s approved list of Rule 170 mediators prior to January 1, 2008,
will not be subject to the 20-hour training requirement; they will, however, be
subject to a biennial 8-hour refresher-training requirement. The 8-hour
refresher training must be completed by January 1, 2009. The refresher training requirement may
be satisfied by way of court-sponsored training, which shall be provided without
charge to mediators, or a mediator may provide to the Office of Mediation and
Arbitration documentation of equivalent training, subject to its approval.
(ii) Neutral Evaluators -- Neutral evaluators must be attorneys who
have a minimum of 10 years experience in litigation in the subject matter areas
to which they may be assigned as neutral evaluators. All neutral evaluators must have at
least 20 hours of training in ADR and an additional 4 hours of training in
neutral evaluation. The 20-hour training shall consist of at least 14 hours of
course material, either sponsored by, or approved by, the Office of Mediation
and Arbitration, along with at least 6 hours of mentoring time in neutral
evaluation of case(s) with an approved Rule 170 neutral evaluator/mentor. The
neutral evaluator/mentor must be approved by the Administrative Council before
serving as a neutral evaluator/mentor.
(iii) Arbitrators -- Arbitrators must be attorneys who have a minimum of
10 years of experience in litigation in the subject matter areas which they may
be assigned as arbitrators. All
arbitrators must have a minimum of 20 hours of training in ADR and an additional
8 hours of training in arbitration under this rule. The 20-hour training shall
consist of at least 14 hours of course material, either sponsored by, or
approved by, the Office of Mediation and Arbitration, along with at least 6
hours of mentoring time in actual arbitration of case(s)with an approved Rule
170 arbitrator/mentor. The arbitrator/mentor must be approved by the
Administrative Council before serving as an arbitrator/mentor. Arbitrators shall adhere to all codes of
conduct generally applicable to both commercial and private arbitrations.
(2) Application and Approval
Process
(a) In order to
serve as a neutral, an attorney must apply and be approved by the Administrative
Council. In approving neutrals, the
Administrative Council may consider the applicant’s alternative dispute
resolution experience or other relevant factors, such as length of practice or
trial experience.
(b) Neutrals may choose to be listed on the
volunteer list, the paid list, or both. Neutrals
shall pay an annual rostering fee pursuant to a fee schedule established by
supreme court order. The amount of
the fee may vary depending upon which list the neutral chooses to be included. The fee will be used to support the
Office of Mediation and Arbitration. The
neutral may provide biographical information for inclusion on the list, as well
a description of those areas of the law in which the neutral has enhanced
knowledge. All neutrals, regardless
of whether they are on the paid or volunteer list, shall agree to act as a
volunteer neutral for a minimum of at least two days but not more than four days
annually. Neutrals in these
volunteer cases must also agree to travel to the courthouse in which the case is
located if the parties and counsel have chosen to have the ADR proceeding there.
(c)
Neutrals shall apply for inclusion on the court's lists by submitting an
application, the applicable rostering fee, and three letters of reference as set
forth in this rule to the Office of Mediation/Arbitration. Inclusion on the court’s list of
approved neutrals remains valid for a one year period from July 1 through June
30 of each year. To request
continued inclusion on the court’s list or lists, a neutral, prior to June 1
of each year, shall:
(i) File a statement that there have been no material changes in his or
her initial application for inclusion, or if there have been material changes,
list and explain them.
(ii) File documentation that the neutral has completed required refresher
training in the field of alternative dispute resolution in accordance with
section (G)(1)(c).
(iii) Pay the rostering fee
set for inclusion on the court’s list of approved neutrals.
(d)
All neutrals agree that as a condition of inclusion on the Court’s list of
approved neutrals, they may be required to provide at least two days but no more
than four days of volunteer ADR sessions each year.
(H)
Immunity for Rule 170 Neutral.
A "Neutral" (defined as a Neutral Evaluator,
Mediator or Arbitrator) selected to serve and serving under Superior Court Rule
170 or Rule 170-A shall have immunity consistent with RSA 490-E:5.