Dispute Resolution in New Hampshire: Panaea, Problem or Promise?
| Citado como | Vol. 49 No. 2 Pg. 0050 |
| Páginas | 0050 |
| Año de Publicación | 2008 |
2008 Autumn, Pg. 50. DISPUTE RESOLUTION IN NEW HAMPSHIRE: Panaea, Problem or Promise?
Volume 49, No. 2
Autumn 2008
INTRODUCTION: RECONCILING DIVERGENT VIEWS
A discussion about alternative dispute resolution (ADR) in New Hampshire typically evokes a passionate response from those who are involved with the process from either within or outside the court system. Attorneys, judges, dispute resolution professionals consumers, ADR trainers and other professionals involved with the process are either passionately positiveor passionately negativeabout the impact of ADR on the Court system. Ironically, a middle-ground on this issue is hard to find. Reconciling the polarized positions would be the holy grail of dispute resolution for the Office of Mediation and Arbitration.
While that goal may not be within reach of this article, what this analysis will do is explore the history of dispute resolution in New Hampshire, both privately and within the court system, to evaluate how ADR is viewed by its current usersand to explore what dispute resolution may look like in the next five years.
I. THE PAST AND PRESENT OF ADR IN NEW HAMPSHIRE
Dispute resolution has been part of our culture for years. Community mediation programs developed in the 1960's and 1970's. Many of these programs use mediation, facilitation and other intervention with families and community groups to assist them to solve problems. They rely on trained volunteer mediators or neutrals to work with families or other groups to find solutions.
Private dispute resolution has become the norm. The American Arbitration Association, JAMS, and other organizations offer private processes for resolution without trial. There are many mediators and arbitrators in private practice, conducting dispute resolution processes outside the court system; and in many cases they are conducting these proceedingspre-suit. The growth of pre-suit ADR has evolved, in large part, due to the fact that many commercial contracts include a requirement that the parties submit to non-binding arbitration or mediation before a case can be litigated. Many contracts require binding arbitration, with no access to the courts, at all.
For example, insurance contracts require arbitration of certain first party claims, rather than litigation. Other organizations require mediation before suit. The United States Postal Service requires mediation through its REDRESS Program. In the postal service system, if an employee is having a workplace dispute, the employees involved, including supervisors, must attend mediation. The EEOC and the Human Rights Commission also require mediation of many workplace disputes. In addition, school districts and families must engage in mediation over special education needs. Clearly, individuals and organizations are using private dispute resolution instead of the court system.
During the past 21 years, the New Hampshire Judicial Branch has made great strides in integrating ADR into the court system. Beginning with the Rule 170 program, launched as a pilot program in 1987 and thenexpanded and more fully developed in the mid-1990's: adding the Probate Court mediation program in 2003, small claims mediation in District Court in 2005, presumptive marital mediation in Family Division in 2005 along with voluntarily mediated adoptions that year. The Judicial Branch has dramatically expanded ADR as a tool to work in tandem with traditional court processes.
Prior to July of 2007, these Judicial Branch ADR programs were administered separately by each of the Courts' administrative offices (Family Division, District Court, Probate, and Superior Court) with help from individual court clerks' offices. Senior Associate Supreme Court Justice Linda S. Dalianis chaired a committee of judges, lawyers, court staff and ADR professionals that was formed to work toward legislative creation of a central office to administer Judicial Branch ADR programs. The purpose of the office would be to review, improve and oversee existing court ADR programs and to develop new programs. In July of 2007 with the support of the legislature, the Judicial Branch proudly launched the Office of Mediation and Arbitration ("OMA")(fn1) and completely revamped the way that ADR programs are administered within the Court system.
According to the legislation creating the OMA, its purpose was to "authorize the Judicial Branch to develop and institute dispute resolution processes which will increase citizen satisfaction with the legal system; provide affordable justice; reduce protracted and repetitive litigation; empower participants to make decisions affecting their future, and enhance court efficiency."(fn2) The mandate for the OMA at its creation was to bring under one roof all of the existing ADR programs and to handle all of the administrative, supervisory, planning, training, and contracting of ADR professionals within those programs. The professionals who staff these programs adhere to the highest standards in both skills and ethics making them a valuable resource within the court system. There are currently 29 mediators on the District Court Small Claims roster, 41 family mediators working in divorce, parenting, civil union dissolution, 7 Probate mediators handling cases such as adult guardianships, wills, charitable trust disputes and voluntarily mediated adoptions, and 191 Superior Court mediators, who either volunteer or are paid market rates for their work in a wide variety of civil and equity cases.
The OMA sponsors, facilitates, participates in, or acts as a conduit for information about training programs for each of the court sponsored ADR programs to help the mediators meet their training requirements. The OMA's focus on training assures users of the courts' programs that they can have confidence in the quality of the ADR professionals assigned to their cases.
When the OMA was initially created,(fn3) it was funded by the Legislature for one year only, after which the Judicial Branch intended to make the OMA self-funding.(fn4)...
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