by Bruce L. Dorner
It’s truly a shame that more effort isn’t used to settle disputes before they reach the courtroom. However, logic often fails when emotions and principles take the lead. Fortunately, even though a case is brought to court, settlement is still possible. In fact, only a small percentage of cases actually brought in the Superior Court go to trial.
For ten years New Hampshire has taken an aggressive approach to resolving law suits without exposing the parties to the time, aggravation, and expense of a trial. All civil cases brought in the Superior Court are required to undergo a process of alternative dispute resolution. The parties have four choices short of trial to resolve their dispute. They may ask for neutral evaluation, mediation, non-binding arbitration, or binding arbitration. The procedure is detailed in Rule 170 of the Superior Court.
To implement this process, the Superior Court provided intensive training for a group of volunteer lawyers who serve as neutrals, mediators and arbitrators. I’m fortunate to be a member of this volunteer group and have been given advanced training to better hone my skills. Each of the attorneys who serve in this program does so in the belief that it is far better for the parties to the dispute to control the outcome than to force a judge to make a decision on their behalf. The volunteer mediators are neutral and can have no relationship with the parties to the case. Conflicts of interest are not permitted.
For purposes of this article I’ll focus on the mediation option as that is the most often selected alternative. What’s the difference between mediation and a trial? The simple answer is that in mediation the parties work with the mediator to try and find a workable resolution to the conflict and then commit it to writing as an agreement. With a trial, the parties virtually sign a blank piece of paper and then the judge fills in the terms of the agreement — only it’s now an order of the court.
How does the process work? Generally, within a few months of the time a law suit is filed, the court schedules a meeting for the attorneys to discuss a timetable for moving the matter forward. At that meeting, called a Case Structuring Conference, the attorneys are given the opportunity to select the method for alternative dispute resolution. Often, the court provides a list of available mediators and the attorneys may have input to the selection process. A notice is sent to the mediator to confirm if he or she will agree to accept the case. At least ten days before the mediation session the attorneys must provide the mediator with a written report summarizing the issues in the case and the current posture or settlement demand or offer. This gives the mediator a chance to study the issues presented and to prepare to discuss them with the parties and their attorneys.
Everyone gets together at the court house for the mediation. The session is generally informal. The mediator gives the parties a chance to present their story and explain what they think will be needed to resolve the conflict. The mediator may hold “public sessions,” in which all parties and their attorneys meet with the mediator to exchange information and discuss options. The mediator may also hold “private sessions,” in which he meets with one attorney and that attorney’s client. Sometimes the mediator will meet privately with only the attorneys or only the parties in an effort to get to the root of the conflict. These “private sessions” allow for a frank discussion of issues that might not otherwise be offered except at trial. For example, sometimes the case is not resolved due to a money issue, but often it is an emotional point that the injured party demands an apology to heal wounded feelings. At the same time, the need for an apology may not be known to the other side. Just getting that issue on the table often reduces tensions and leads to resolution. The “private sessions” go a long way toward determining what each party really desires in a settlement. Items detailed in a “private session” may not be revealed to the other side without permission. The mediator will hold them as confidential disclosures.
The mediator may move back and forth in Henry Kissinger style between the parties in both private and public sessions as needed in an effort to narrow the scope of the dispute and bring the parties together in settlement. If the process is successful, a written document called a Docket Marking is filed with the court confirming the terms of the agreement. If the process is not successful, the mediator notifies the court that settlement was not achieved and the case proceeds forward to trial. None of the discussions at the mediation can be used at trial and the mediator cannot be a witness with regard to discussions at the mediation.
We’re fortunate that these volunteer mediators are able to settle a significant number of cases brought to Superior Court. Be sure your case is well prepared before you go to a Rule 170 mediation at the Superior Court.
This article provides general information only. It is not legal advice. You should consult with your own attorney before making any legal decision.