THE STATE OF NEW HAMPSHIRE
SUPREME COURT OF NEW HAMPSHIRE
O R D E R
Pursuant to Part II, Article 73-a of the New Hampshire Constitution and Supreme Court Rule 51, the Supreme Court of New Hampshire approves, on a temporary basis, adoption of District Court Rule 4.29 as set forth in Appendix A.
The amendment in Appendix A shall take effect immediately, and shall be referred to the Advisory Committee on Rules for consideration of whether it should be adopted on a permanent basis.
July 13, 2005
Carol Belmain, Deputy Clerk of Court
Supreme Court of New Hampshire
Adopt new District Court Rule 4.29 as follows:
Rule 4.29. District Court Small Claims Mediation Policy
(A) Purpose. The District Court establishes these small claims mediation rules to increase access to justice; to increase partiesí satisfaction with the outcome; to reduce future litigation by the same parties; to make more efficient use of judicial resources; and to expand dispute resolution resources available to the parties.
(B) Definitions. For the purpose of this rule, the following definitions apply.
(1) Mediation. Mediation is a process in which a mediator facilitates settlement discussions between parties.
a. The mediator has no authority to make a decision or impose a settlement upon the parties.
b. The mediator attempts to focus the attention of the parties upon their needs and interests rather than upon their rights and positions.
c. Any settlement is entirely voluntary.
d. In the absence of settlement, the parties lose none of their rights to a resolution of their dispute through litigation.
Mediation is based upon principles of communication, negotiation, facilitation and problem solving that emphasizes:
a. The needs and interest of the parties
c. Procedural flexibility
d. Privacy and confidentiality
e. Full disclosure
f. Self determination
(2) Mediator. An impartial person who facilitates discussions between the parties to a mediation. The role of the mediator includes but is not limited to assisting the parties in identifying issues, reducing obstacles to communication, and providing the parties an opportunity for each to be heard in a dignified and thoughtful manner. The mediatorís focus will be on encouraging and supporting the partiesí presentations to and reception from one another allowing them to find a resolution that is appropriate.
(3) Party. Any person whose name is designated on the record as plaintiff or defendant and their attorney or any other person who has filed an appearance.
(C) Mediator Qualifications. Mediators shall satisfy the qualifications and criteria specified by the Supreme Court. Minimum qualifications include: completion of a 20-hour mediation process training; two years experience as a mediator or equivalent experience, and an understanding of civil and landlord/tenant law is helpful.
All mediators serving as small claims mediators shall contract with the Administrative Office of the Courts for a term of one year.
(D) Referral of cases to mediation. Small Claims cases may be referred to mediation where requested by any party and all remaining parties indicate that they desire to proceed with mediation.
(E) Mediator Assignment. The Administrative Judge of the District Court shall determine the mediation needs for each District Court. Assignment of mediators shall be based on the mediator needs of each court.
Each District Court shall schedule small claims cases and allocate mediator(s) in a manner that accommodates the small claims case load in their court.
(F) Payment of mediator fees. Small Claims mediators shall be paid on a per case fee set by the Supreme Court. Payments shall be made out of the Mediator Fund established by the court. No additional fees or reimbursements shall be made.
(G) Disclosure of Conflict. Upon receipt of a notice of appointment in a case, the mediator shall disclose any circumstances likely to create a conflict of interest, the appearance of conflict of interest, a reasonable inference or bias or other matter that may prevent the process from proceeding as scheduled.
(1) If the mediator withdraws, has a conflict of interest or is otherwise unavailable, another mediator shall be appointed by the court.
(2) The burden of disclosure rests on the mediator. After appropriate disclosure, the mediator may serve if both parties so desire. If the mediator believes or perceives that there is a clear conflict of interest, he or she should withdraw, irrespective of the expressed desires of the parties.
(H) Impartiality. Impartiality shall be defined as freedom from favoritism or bias in word, action and appearance.
(1) Impartiality implies a commitment to aid all parties, as opposed to an individual party, when moving toward an agreement. A mediator shall be impartial and shall advise all parties of any circumstances bearing on possible bias, prejudice or impartiality.
(2) A mediator shall maintain impartiality while raising questions for the parties to consider as to the reality, fairness, equity, and feasibility of the proposed options for settlement.
(3) A mediator shall withdraw from mediation if the mediator believes the mediator can no longer be impartial.
(4) A mediator shall not give or accept a gift, request, favor, loan, or any other item of value to or from a party, attorney or any other person involved and arising from the mediation process.
(I) Prohibitions. A mediator shall not provide counseling or therapy to any party during the mediation process nor shall a mediator who is an attorney represent either party, or give legal advice during or after the mediation.
The mediator shall not use the mediation process to solicit or encourage future professional services with either party.
(J) Self determination. A mediator shall assist the parties in reaching an informed and voluntary settlement. Decisions are to be made voluntarily by the parties.
(1) A mediator shall not coerce or unfairly influence a party into a settlement agreement and shall not make a substantive decision for any party to a mediation process.
(2) A mediator shall not intentionally or knowingly misrepresent material facts or circumstances in the course of conducting a mediation.
(3) A mediator shall promote consideration of the interest of persons affected by actual or potential agreements who are not present during a mediation.
(4) The mediator shall promote mutual respect amongst the parties throughout the process.
(K) Professional Advice. A mediator shall only provide information the mediator is qualified by training or experience to provide.
(1) When a mediator believes a non represented party does not understand or appreciate how an agreement may adversely effect legal rights or obligations, the mediator shall advise the participants to seek independent legal counsel.
(2) While a mediator may point out a possible outcome of the case, under no circumstances may a mediator offer a personal or professional opinion as to how the court in which the case is filed will resolve the dispute.
(L) Confidentiality. A mediator shall preserve and maintain the confidentiality of all mediation proceedings. Any communications made during the mediation which relates to the controversy mediated, whether made to the mediator or a party, or to any other person present at the mediation is confidential.
(1) A mediator shall keep confidential from the other parties any information obtained in an individual caucus unless the party to the caucus permits disclosure.
(2) All memoranda, work products and other materials contained in the case file of a mediator are confidential. The mediator shall render anonymous all identifying information when materials are used for research, training or statistical compilations.
(3) Confidential materials and communications are not subject to disclosure in any judicial or administrative proceedings except for any of the following:
a. Where the parties to the mediation agree in writing to waive the confidentially.
b. When a subsequent action between the mediator and a party to the mediation for damages arises out of the mediation.
c. Where there are threats of imminent violence to self or others.
d. Where reporting is required by state law.
(M) Inadmissibility of Mediation Proceeding. Mediation proceedings under this rule are non-binding and shall not impair the right of the litigants to demand a trial. Any settlement reached at mediation shall be binding on the parties and entered as a judgment. Information, evidence or the admission of any party shall not be disclosed or used in any subsequent proceeding.
(1) Statements made and documents prepared by a party, attorney, or other participant in the aid of such proceedings shall be privileged and shall not be disclosed to any court or construed for any purpose as an admission against interest.
(2) All mediation proceedings are deemed settlement conferences as prescribed by court rule and the Rules of Evidence. In addition, the parties shall not introduce into evidence in any subsequent proceeding the fact that there has been a mediation proceeding.
(3) Evidence that would otherwise be admissible at trial shall not be rendered inadmissible as a result of its use in a mediation proceeding under this rule.
(4) A mediator shall not be called as a witness in any subsequent proceeding relating to the partiesí negotiation and participation except as set forth in Section N of this rule.
(N) Concluding Mediation. If an agreement is reached during the mediation process, the parties shall reduce their agreement to a written memoranda on the points on which agreement has been reached, and the memoranda shall be reviewed and signed by all parties before the mediation ends.
If an agreement is not reached during the mediation process, the mediator shall notify the court that the mediation failed to resolve the issue in conflict.
(O) Immunity. No mediator shall be held liable for civil damages for any action, statement, admission or decision made in the course of mediation unless that statement, action, admission, or decision is grossly negligent and made with malice or is in willful disregard for the safety or rights of any party to the mediation.
(P) Implementation. The Administrative Judge of the District Court shall be responsible for designating an implementation schedule for the small claims mediation program. Initially, each county shall have at least one District Court designated to provide small claims mediation. The program shall be implemented in the remaining courts on a scheduled developed by the Administrative Judge for the District Court.
(Q) Removal from list of small claims mediators. Certification to mediate Small Claims Cases in the District Court confers no vested rights to the mediator, but is a conditional privilege that is revocable.
(1) At any time during the period of certification, upon notice and opportunity to be heard, a small claims mediator who is found to have engaged in conduct that reflects adversely on his/her impartiality or in the performance of his/her duties as a mediator, or is found to have persistently failed to carry out the duties of a mediator, or is found to have engaged in conduct prejudicial to the proper administration of justice, shall be removed from the list of certified small claims mediators.
(2) All complaints regarding a mediatorís performance shall be forwarded to the NH Judicial Branch Alternative Dispute Resolution Administrator who will investigate the complaint. The Administrator will give notice and opportunity for all parties to be heard and make all final decisions regarding what action, if any, will be taken.
(3) All Small Claims mediators must inform the Judicial Branch Alternative Dispute Resolution Administrator and Administrative Justice of the District Court within 30 days of a change in circumstances such as a conviction of a felony or loss of professional license. Small Claims mediators who are convicted of a felony or misdemeanor involving moral turpitude, or who have a professional license revoked, shall be denied certification.