Rule 32. Alternative Dispute Resolution (ADR)
|Page Content||Page Number||Page ID|
(a) Cases for Alternative Dispute Resolution.
(1) All civil cases shall be assigned to ADR, with the exception of those exempted in paragraph (2).
(2) The following categories of civil actions are exempt from the requirements of this rule.
(a) 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.
(b) Actions exempted by the court on motion and for good cause, but only when said motion is filed within 180 days of the court ordered service date.
(b) Order of Alternative Dispute Resolution Procedure.
(1) The order referring the case to ADR will be contained in the case structuring order issued by the court at least thirty days in advance of the assignment date. ADR proceedings shall not stay, alter, suspend, or delay pre-trial discovery, motions, hearings, or conferences nor the requirements and time deadlines of New Hampshire Superior Court Rules. ADR proceedings may occur at the courthouse at the request of a party with approval of the court, or at the court’s direction.
(2) A copy of the ADR report (#NHJB-2488-S) must be filed by the plaintiff(s) or plaintiff(s)' counsel (unless otherwise agreed) within 30 days of the ADR session. If the ADR report is not timely filed, the court may schedule a show-cause hearing to determine the status of the ADR process and to impose sanctions appropriate to the circumstances, if necessary.
(3) 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.
(1) All neutrals on the court approved roster shall be attorneys admitted to practice in New Hampshire who are in good standing.
(2) Selection of a Neutral.
(a) Unless the context of the rule indicates otherwise, the term "neutral" shall include one of the following:
i. an ADR professional who is available on a day indicated in the case structuring order, or
ii. a neutral selected from the court's lists of approved neutrals and indicated in the case structuring order, or
iii. any neutral who is not on the court's approved lists but who is agreed upon by the parties and indicated in the case structuring order.
(b) If the neutral is chosen at a structuring conference, within 10 days after the structuring conference, parties or counsel shall contact the neutral or the alternates, if necessary.
(c) Except for the date by which the ADR procedure must be completed, the case structuring 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 any party for good cause shown.
(3) Once the parties contact the neutral, the neutral shall disclose any circumstance 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 appointed by the court upon motion, unless the parties agree to a qualified substitute neutral.
(4) Specific Requirements:
(a) All Rule 32 neutrals must have either:
(1) training and demonstrated experience in civil mediation; or
(2) service as a prior Superior Court mediator.
(b) All neutrals will be subject to an annual 8-hour refresher-training requirement. The 8-hour refresher training for any year must be completed by January 1, of the following year. The refresher training requirement may be satisfied by way of court-sponsored training, which shall be provided to neutrals, or neutrals may provide to the Office of Mediation and Arbitration documentation of equivalent training, subject to its approval.
(5) Application and Approval Process
(a) In order to serve as a neutral, an attorney must apply and be approved by the Chief Justice of the Superior Court, in consultation with the Office of Mediation and Arbitration. In approving neutrals, the Chief Justice of the Superior Court may consider the applicant’s alternative dispute resolution experience or other relevant factors, such as length of practice or trial experience.
(b) Neutrals will be on the court-approved roster that will be posted on the New Hampshire Judicial Branch website. The neutral may provide biographical information for inclusion on the list, as well as a description of those areas of the law in which the neutral has enhanced knowledge.
(c) Neutrals who would like to be included on the court’s roster shall submit their application, 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 January 1 through December 31 of each year. To request continued inclusion on the court’s list or lists, a neutral, prior to January 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 (c)(4)(b).
(d) No rostering fee shall be required.
(6) Immunity for Superior Court Neutral.
A Neutral selected to serve and serving under Superior Court Rules shall have immunity consistent with RSA 490-E:5.
(d) Inadmissibility of Alternative Dispute Resolution Proceedings.
(1) ADR proceedings and information relating to those proceedings shall be confidential unless otherwise agreed in writing by all parties and all counsel. 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 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 may otherwise be required by law. Notwithstanding the foregoing, if the parties have reached a settlement agreement, that fact and the terms of any such agreement may be admissible in a further proceeding to enforce same.
(2) There shall be no record made of any proceedings conducted pursuant to this rule.
(3) Evidence that would otherwise be admissible at trial shall not be rendered inadmissible as a result of its use in an ADR proceeding.
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.
In addition to the entry fee, the sum of $10.00 shall be collected for all civil cases filed in the Superior Court and shall be deposited in the mediation and arbitration fund established under RSA 490-E:4.