Rule 33. Arbitration by Agreement

(a) Cases for Arbitration.  Subject to RSA 542, non-criminal disputes will be assigned to arbitration upon agreement of the parties or as mandated by a written contractual provision.

    (b) Submission of Dispute to Arbitration.

        (1)  Prior to the commencement of any lawsuit, if all parties to the arbitration consent, a written request for arbitration may be made to the Administrator of the Office of Mediation and Arbitration.  The administration of the Arbitration Hearing will be conducted pursuant to Superior Court Rule 33, unless the parties agree otherwise.  In all cases, the parties should utilize the Office of Mediation and Arbitration and the list of approved arbitrators.  The parties shall be subject to an administrative fee of $250.00 per party, which shall be paid to the Office of Mediation and Arbitration.  Parties who are indigent may petition the superior court for waiver of the administrative fee.

        In cases submitted under subsection (b)(1) of this rule in which administration of the Arbitration Hearing is conducted pursuant to Rule 33, all references in Rule 33(c) through 33(s) to the superior court shall be deemed to refer to the Office of Mediation and Arbitration.

        (2) After commencement of any lawsuit, a written request for arbitration shall be made to the Superior Court.  In the event that the dispute is pending in a New Hampshire Court, a copy of the written submission shall be sent to the clerk for the appropriate court; and all proceedings in that court will cease.  The administration of the Arbitration Hearing will be conducted pursuant to Superior Court Rule 33.

    (c) Qualifications of and Approval Process for Arbitrators.

   The provisions of Superior Court Rule 32(c) shall apply to arbitrators.

    (d) Immunity for Arbitrators.

   An arbitrator selected to serve and serving under New Hampshire Superior Court Rule 33 shall have immunity consistent with RSA 490-E.

    (e) Neutrality.

   All arbitrators, whether selected by a party, selected by all parties, selected by the court or the Office of Mediation and Arbitration, or selected by arbitrators, shall be neutral and shall serve with impartiality.

    (f) Communication with Arbitrator.

   No party and no one acting on behalf of any party shall communicate ex-parte with an arbitrator or a candidate for arbitrator concerning the arbitration.

    (g) Arbitrator’s Disclosure.

   Upon receipt of notice of appointment in a case, an arbitrator 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.

   In cases where arbitration is selected after suit is filed, if an arbitrator withdraws, has a conflict of interest and there is an unresolved issue concerning recusal or if the arbitrator is otherwise unavailable, another shall be agreed to by the parties or the issue shall be referred to the Court if the issue of recusal cannot be resolved by the parties and the arbitrator. 

   In cases where arbitration is selected pre-suit, if an arbitrator withdraws, has a conflict of interest and there is an unresolved issue concerning recusal or if the arbitrator is otherwise unavailable, another shall be agreed to by the parties or the issue shall be referred to the Office of Mediation and Arbitration if the issue of recusal cannot be resolved by the parties and the arbitrator.

    (h) Arbitration Panel.

   In all cases so assigned, the parties shall select arbitrator(s) from the court list of approved arbitrators.  The parties may choose either a single or three-person panel.  In the event the parties cannot agree upon the panel number, a three-person panel will be utilized for all cases involving claims or counterclaims exceeding $100,000 or cases involving three or more parties.  In the event the parties cannot agree upon the panel number, a single member panel will be utilized for all cases involving claims or counterclaims of $100,000 or less.

        (1) When the parties choose arbitrator(s) from the list of approved paid arbitrators, the parties shall notify the arbitrator(s) and request that the arbitrator(s) provide the parties with a schedule of fees and expenses.

        (2) Unless the court orders or the parties otherwise agree, arbitrators who are chosen from the list of approved paid arbitrators shall be compensated as follows.  In the event a single arbitrator is selected, the parties shall equally share the costs of the arbitrator. When there are two parties and they select a three-person panel, each party shall pay for the arbitrator selected by the party and share the fees of the third panel member. When there are three parties and they select a three-person panel, each party shall be responsible for the arbitrator selected by the party. In the event there are more than three parties, the parties shall pay a pro rata share of the entire arbitration panel's fees.

        (3) Parties may select arbitrator(s) who are not on the court’s list of approved arbitrators if the parties agree on the choice of the arbitrator(s).

        (4) In the event the parties cannot agree on an arbitrator for single-person panels, the court shall designate an arbitrator in the case structuring order.  For three-person panels, if the parties cannot unanimously agree upon the arbitrators and there are two parties, each will select an arbitrator and the two arbitrators will select the third.  In the event there are three parties, each will select an arbitrator.  The three selected arbitrators will serve as the panel.  In the event there are more than three parties and they cannot unanimously agree upon the panel, each party will submit one name to the court and the court shall select three individuals from the names submitted to serve as the arbitration panel.

    (i) Preliminary Hearing.

        (1) At the request of any party, the panel will schedule within 14 days of the request a preliminary hearing with counsel and/or the parties.  The preliminary hearing may be conducted by telephone at the panel’s discretion.

        (2) During the preliminary hearing, the parties and the panel shall discuss and establish a schedule for the hearings, any outstanding discovery issues, any outstanding procedural issues, and to the extent possible a clarification of the issues.

        (3) Ex parte communications between a party's counsel and arbitrator are prohibited.

    (j) Hearings: When and Where Held; Notice.

        (1) Hearings shall be held at a place designated by the panel.  The hearing date shall be established at the preliminary hearing or by the panel after consultation with counsel and/or the parties.  Counsel and/or the parties shall respond to requests for hearing dates within seven (7) days of the request.  Counsel or the parties shall be notified in writing at least thirty (30) days before the hearing of the time and place of the hearing.  No hearing shall be assigned for Saturdays, Sundays, legal holidays, or evenings unless by the unanimous agreement of all counsel or parties.

        (2) Unless excused by the panel, all parties shall be in attendance at the hearing, and each party shall have at least one person present who has authority to authorize settlement.

    (k) Postponement of Arbitration.

   In the event that counsel or any party for good cause shown is unable to proceed, the panel may reschedule the case in their discretion.  The postponement shall be for no more than 30 days absent extraordinary circumstances.

    (l) Default and Sanctions.

   Upon failure of a party to appear at a scheduled arbitration hearing or to participate in good faith in the proceedings, a default judgment may be entered and reasonable costs and attorneys fees may be assessed against the party.  Default judgments may be contested only by the filing of a Motion to Strike Default setting forth specific grounds therefor within ten (10) days of the mailing of the Notice of Default.  The panel shall have discretion as to appropriate sanction, including assessing costs, attorneys’ fees, or entering default.

    (m) Prehearing Submissions.

        (1) Unless otherwise agreed to at the preliminary hearing, the parties shall exchange a list of witnesses they intend to call, including experts, a short description of the anticipated testimony of each witness, an estimate of the length of direct testimony of each witness, and all exhibits at least thirty (30) calendar days before the arbitration hearing.   The parties shall attempt to resolve any disputes regarding the admissibility of exhibits.  The exhibits must be premarked and a list of the exhibits submitted, indicating those exhibits that are to be admitted without objection and those exhibits that are objected to.

        (2) If the parties intend to offer expert witnesses at the time of the hearing, at least sixty (60) calendar days before the arbitration hearing an expert disclosure consistent with Superior Court Rule 27 shall be made.  Failure to make such a disclosure will result in the exclusion of the expert as a witness at the hearing.  Any objection to the sufficiency of the disclosure and, therefore, the admissibility of the expert’s testimony will be ruled upon by the panel.

    (n) Case Summary.

        (1) All parties shall submit and exchange no later than ten (10) days prior to the arbitration hearing a double-spaced typewritten summary of not more than four (4) pages upon 8½” x 11" paper of the significant portions of their case.

        (2) All such summaries shall contain a written stipulation, or, if counsel cannot agree to file a stipulation, a separate statement by each party, setting forth the following information:

            (i) All uncontested facts;

            (ii) All contested facts;

            (iii) Pertinent applicable law;

            (iv) Disputed issues of law;

            (v) Specific claims of liability by each party making such claims;

            (vi) Specific defenses to liability by each party asserting such defenses;

            (vii) An itemized statement of special damages by each party claiming such damages;

        (3) All such summaries shall contain a statement of compliance with the exchange requirement.

        (4) The purpose of the case summary submission is to apprise the panel of the issues in dispute.

    (o) Securing Witnesses and Documents for the Arbitration Hearing.

        (1) The panel may issue subpoenas for the attendance of witnesses or the production of documents.  All parties shall produce for the Arbitration Hearing all witnesses requested in writing by another party that are in their employ or under their control.  This shall be done without the need of subpoena.

        (2) The testimony of witnesses shall be given under oath.

        (3) The plaintiff shall present all of his/her evidence.  In the event of multiple plaintiffs, each plaintiff shall present all of his/her evidence.  The defendant will then present evidence to support his/her defenses and any counterclaims.  In the event of multiple defendants, one defendant will complete his/her evidence and then the remaining defendants will proceed.

        (4) Witnesses will be subject to cross-examination by other counsel (or the opposing party where a party is unrepresented) and the panel.  The panel has the discretion to vary this procedure provided the parties are treated fairly, justly, and equally and that each party is given an adequate opportunity to present his/her case.

        (5) The panel exercising its discretion shall conduct the proceedings with a view to expediting the hearing and expediting the resolution of the dispute.  Therefore, strict conformity to New Hampshire Rules of Evidence is not required, with the exception that the panel shall apply applicable New Hampshire law relating to privileges and work product.  The panel shall consider evidence that is relevant and material to the dispute, giving the evidence such weight as is appropriate.  The panel may limit testimony to exclude evidence that would be unduly repetitive.

        (6) Openings and closing will be allowed and may be made orally or in writing.

    (p) Hearing Closure.

   If post-hearing memoranda are to be submitted or closing arguments are to be made in writing, the hearing shall be deemed closed upon receipt by the panel of the written submissions.  The date for the written submissions shall be established; otherwise, the hearing will be closed at the conclusion of the presentation of the evidence and oral arguments.

    (q) Transcript of the Testimony.

   Any party may arrange for a stenographic or other record to be made of the hearing and shall inform the other parties in advance.  The requesting party shall bear the cost of the stenographic record.  A copy of the stenographic record shall be made available to all other parties upon request.

    (r) Report of Award.

        (1) Within twenty (20) days after the hearing closure date, the panel shall file a Report of Award.  Originals of the Award shall be mailed to all counsel or parties.  If there is a dissent, it shall be signed separately; but, the Award shall be binding if signed by the majority of a three-member panel.

        (2) The decision need not be in a particular form but must include sufficient findings of fact and conclusions of law to establish a basis for the decision.

    (s) Legal Effect of Report and Award; Entry of Judgment.

   The Report of Award, unless appealed consistent with provisions of New Hampshire RSA 542:8, shall be final and shall have the attributes and legal effect of a verdict.  If no appeal is taken within the time and in the manner specified in New Hampshire RSA 542:8, any party may move for confirmation and entry of judgment in accordance with New Hampshire RSA 542:8.  After entry of such judgment, execution process may be issued as in the case of other judgments.