Mediation is an informal process where parties try to resolve a dispute without going to court. In mediation, the parties meet in a private, confidential setting to work out a solution with the help of a neutral third person, the mediator. A mediator does not decide who is right or wrong or force parties to reach an agreement.
Each party has an opportunity to be heard and understood. By discussing your options in mediation, you may discover choices you did not know of or would be unavailable to you through a judge’s order. In mediation you control the outcome of your dispute.
Even when a case is not resolved through mediation, often the parties have a better understanding of the underlying issues following a mediation session, and settlement may follow before another court hearing.
What happens during mediation?
At the start of a mediation session, the mediator will explain how mediation works and will answer any questions.
The mediator will then ask each party to state their views and describe what they would like to have happen in the case. The mediator may ask to meet with you (and with your lawyer if you have one) without the other party present, sometimes called a “caucus.” If you do have an attorney, you may take a break and talk with your attorney privately at any time.
If an agreement is reached, you may put it in writing and all parties may sign and submit it to the Court. The judge will review the agreement and, if the judge approves it, issue an order.
If an agreement is not reached, or if one or more of the parties does not attend the mediation session, the Court will hear the case in a regular Court hearing.
For more information on Probate Court mediation policies see Probate Court Administrative Order 11.
Who are the mediators?
A mediator is an impartial person who facilitates discussion between the parties. A mediator assists parties in identifying issues, reducing obstacles to communication, and maximizing the exploration of options in helping the parties reach voluntary agreement.
Mediators have completed a 40-hour mediation training course and have a minimum of five years’ experience. The Court assigns mediators to cases. Every effort will be made to accommodate parties if they prefer someone specific from the probate mediator list.
How do I request mediation?
You can ask the judge to refer your case to mediation by filing a motion. The Court can also refer a case to mediation on its own.
How do I prepare for mediation?
If you would like some assistance in preparing, please complete the Probate Mediation Prep Form. Of course, you are always welcome to draft your own. However you prepare your required summary, please send copies to the other parties and mediator at least ten (10) days before mediation.
It is important to come to the mediation session with an open mind, ready to consider new options that may not have been raised previously. It is also important to be willing to share information with the other parties so that you can work together on an agreement.
Mediation deals not only with your legal claim but also with underlying issues that are important to you. It is important to understand the nature of your dispute and what you really want to happen when the case is resolved.
How much does mediation cost?
The Office of Mediation and Arbitration will pay the mediator for up to 12 hours of your mediation. Parties may extend mediation beyond 12 hours and pay the mediator directly at the mediator’s individual rate.
How do I get more information on trust, estate, or equity mediation?
Neutral Case Evaluation (NCE) is a confidential dispute resolution option available for any trust and estate cases filed in any New Hampshire Circuit Court Probate Division, including reopened cases. In NCE, a sitting or retired judge or marital master (called an "Evaluator") will help you and the other person discuss the areas of disagreement in your case. Then, the Evaluator will share an opinion about what a judge might decide about those areas of disagreement if the case went to trial. In NCE, you have the opportunity to come to an agreement on all, some, or none of the issues. If you come to agreement, you will sign the agreement and it will be submitted to the judge hearing your case for review and approval. You can find more information about NCE in the protocol.
How do I participate in NCE?
1. Request NCE by filing a motion or by asking your Judge at the next hearing to assign you to NCE. Both parties have to agree to use it, so if you have not already agreed with the other party to request NCE, the Court will ask the other party if they would like to participate in NCE.
2. You can request a time for the NCE in your motion. Due to the Court’s schedule, that time may or may not be available. You will receive the Court’s Notice of Neutral Case Evaluation, which will include the time the NCE is scheduled for.
3. Prepare for NCE by thinking about what you want and talking with the other side about what they want. You should have a sense of where there is agreement and where there is disagreement before participating in NCE.
4. Participate in NCE on the date and time, and in the location, listed on the Notice you will receive from the court. Any attorneys in the case should attend NCE. You will be asked to sign the Neutral Case Evaluation Participation Agreement before the session begins. Use this Attorney Preparation checklist for your own preparation and submit the Neutral Case Evaluation Preparation Form to the court at least ten (10) days in advance of the NCE.
5. Come to agreement on all or some of the issues. Sign the agreement or have it reviewed by an attorney before you sign it. The Judge who is hearing your case will then review it and, if it is acceptable, approve it.
6. If you do not come to agreement on all the issues, you will be scheduled for the next court event, which is usually a pre-trial conference.Questions? You can find more information about NCE in the protocol. You may also contact the Office of Mediation and Arbitration or the probate division court where your case is being heard.
You may contact the Office of Mediation & Arbitration at:
|address:||1 Granite Place, Suite N400
Concord NH 03301