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VI.  Alternatives To Trial

Rule 3.30.    Mediation

(a)  Purpose.  The Circuit Court establishes these Civil Complaint mediation rules to increase access to justice; to increase parties’ 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.

(2)  Mediation is based upon principles of communication, negotiation, facilitation and problem solving that emphasize:

(A)  The needs and interest of the parties
(B)  Fairness
(C)  Procedural flexibility
(D)  Privacy and confidentiality
(E)  Full disclosure
(F)  Self determination

(3)  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 mediator’s focus will be on encouraging and supporting the parties’ presentations to and reception from one another allowing them to find a resolution that is appropriate.

(4)  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 civil complaint mediators shall contract with the Administrative Office of the Courts for a term of one year.

(d)  Referral of cases to mediation.  The Civil Complaint mediation program is voluntary.  Cases may be referred to mediation at the case structuring conference or at any other time during the case.

(e) Continuances. If the court has set a specific date for mediation, and if a party files a Motion to Continue Mediation for good cause, the Court has discretion to continue the mediation and set a new mediation date if no prior Motions to Continue Mediation have been granted.   The Court will not grant multiple requests to continue mediation.

(f)  Failure to Attend Mediation.  If either party fails to attend a scheduled mediation without good cause and without providing sufficient notice to the other party(ies) and to the Court, the parties shall lose the opportunity to participate in the mediation program. Under those circumstances the matter shall not be rescheduled for mediation and the matter shall be returned to the trial docket.

(g)  Mediator Assignment.  The Administrative Judge of the Circuit Court, in consultation with the Office of Mediation and Arbitration, shall determine the mediation needs for each Circuit Court in the Civil Complaint program. Assignment of mediators shall be based on the mediator needs of each court.
Each Circuit Court shall schedule civil complaint cases and allocate mediator(s) in a manner that accommodates the case load of the Court.

(h)  Payment of mediator fees.  Civil complaint mediators shall be paid on a per case fee set by the Supreme Court. Payments shall be made out of the Office of Mediation and Arbitration (“OMA”) Fund established under RSA 490-E:4.  No additional fees or reimbursements shall be made.

(i)  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 of 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.

(j)  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.

(k)  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.

(l)  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.

(m)  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 affect 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.

(n)  Confidentiality.  A mediator shall preserve and maintain the confidentiality of all mediation proceedings.  Any communication 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.

(o)  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 parties’ negotiation and participation except as set forth in Section n of this rule.

(p)  Concluding Mediation.  If an agreement is reached during the mediation process, the parties shall reduce their agreement to a written memorandum on the points on which agreement has been reached, and the memorandum shall be reviewed and signed by all parties before the mediation ends, unless the parties otherwise agree that additional time is necessary to ensure that the parties have time to consult with counsel about their agreement if unrepresented at the time of the mediation.  In that case, the parties shall submit the written agreement to the Court within thirty days of the mediation session.  Within 48 hours of the mediation session, the mediator shall submit an ADR report indicating the status of the agreement either attaching it to the ADR report, or, indicating that it will be filed with the Court within the next thirty days.
If an agreement is not reached during the mediation process, the mediator shall notify the Court via the ADR report that the mediation failed to resolve the issue in conflict or if the mediation successfully resolved part of the matter, the ADR report will so indicate.

(q) Immunity.  The mediator will not be acting as legal advisor or legal representative. The parties should recognize that, because the mediator is performing quasi-judicial functions and is performing under the auspices of the Circuit Court, each such mediator has immunity from suit, and shall not be called as a witness in any subsequent proceeding relating to the parties' negotiations and participation except as set forth in Section n of this rule.

(r)  Removal from list of Civil Complaint mediators. Appointment to the Civil Complaint roster in the Circuit Court confers no vested rights to the mediator, but is a conditional privilege that is revocable.

(1)  At any time during the one year rostering period, upon notice and opportunity to be heard, a civil complaint 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 civil complaint mediators.
(2) All complaints regarding a mediator’s performance shall be forwarded to the NH Judicial Branch Director of the Office of Mediation and Arbitration and the Administrative Judge of the Circuit Court. The Director of the OMA will investigate the complaint and will make recommendations to address the complaint to the Administrative Judge of the Circuit Court.
(3)  All civil complaint mediators must inform the Director of the Judicial Branch Office of Mediation and Arbitration and the Administrative Judge of the Circuit Court within 30 days of a change in circumstances such as a conviction of a felony or loss of professional license.  Civil complaint mediators who are convicted of a felony or misdemeanor involving moral turpitude, or who have a professional license revoked, shall be denied certification.

Rule 3.31     Reserved for future use.

Rule 3.32     Reserved for future use.

Rule 3.33     Reserved for future use.

Rule 3.34     Reserved for future use.


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