Superior Court Rules Table of Contents
170-A. ARBITRATION
(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 170-A, 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 170-A, all references in Rule 170-A(C) through 170-A(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 170-A.
(C)
Qualifications of and Approval Process for Arbitrators.
The provisions of Superior
Court Rule 170(G) shall apply to arbitrators.
(D)
Immunity for Arbitrators.
An arbitrator selected to
serve and serving under New Hampshire Superior Court Rule 170-A 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)
If the parties cannot agree on the selection of arbitrator(s), they shall so
indicate in the Stipulation required to be filed pursuant to Superior Court Rule
170(C)(1). In the event the parties
cannot agree on an arbitrator for single-person panels, the court shall
designate an arbitrator at the structuring conference. 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 the then existing Superior Court Rule 35 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 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.