NHBA Dispute Resolution Committee

General Provisions and Procedures

Revised June 2019

NHBA Dispute Resolution Committee

PURPOSE

The New Hampshire Bar Association Dispute Resolution Committee (NHBA DRC) is designed to assist in the efficient and unbiased resolution of disputes, free of charge, between clients and their lawyers, and lawyers and other lawyers, which do not rise to the level of an ethical violation of the New Hampshire Rules of Professional Conduct. [1] The NHBA DRC offers formal and informal Mediation services, and if Mediation is unsuccessful, Arbitration services.

Neutral, unbiased, and unpaid volunteer NHBA DRC members, experienced in dispute resolution, will be assigned by the NHBA DRC to assist the parties with resolution of a dispute.

A volunteer NHBA DRC member will not provide legal advice to any party to a dispute; act as an advocate for any party to a dispute; or otherwise have an attorney/client relationship with any party to a dispute.

Inquiries may be directed to:

NH Bar Association
Dispute Resolution Committee
2 Pillsbury Street
Suite 300
Concord, NH 03301
603-224-6942
Email: nhba.drc@nhbar.org

[1] NHBA DRC does not offer Mediation or Arbitration for ethical disputes

General Provisions and Procedures

PURPOSE

These NHBA DRC general provisions and procedures are established to provide an efficient, confidential, and cost-free mechanism for resolving professional and economic disputes between clients and their lawyers, and lawyers and other lawyers.

These provisions and procedures are intended and designed to benefit the public, the legal profession, and the judicial system.

CONFIDENTIALITY

Inquiries, communications, and proceedings between and among the NHBA, the parties, and the volunteer mediator shall be, and remain, confidential and privileged; and not subject to discovery or production in any other forum or for any other purpose, except as set forth below or otherwise required by law.

Records, documents, files, proceedings and hearings pertaining to disputes handled under these provisions and procedures shall not be disclosed to other persons or entities who are not parties to the dispute. Provided, however, that:

  1. Information may be made available to the NHBA and its DRC members for purposes of their volunteer work on a dispute;
  2. The NHBA DRC may disclose information, or compile and disclose statistical information, concerning the nature and number of disputes handled during certain time-periods under circumstances which protect the identity of the parties (e.g., by releasing information from which the names and similar identifying information have been redacted); and
  3. The NHBA DRC or volunteer mediator may be compelled to submit information to the New Hampshire Supreme Court Attorney Discipline System, or otherwise required by law.

JURISDICTION

  1. Except as provided in subsection 2 below, the NHBA DRC shall have jurisdiction over a request for resolution of a dispute raised by an individual, a client (either current or prior), or an attorney licensed to practice in this state. A request for resolution may be submitted by an individual, client, or attorney.
  2. The NHBA DRC shall have no jurisdiction or authority over:

a) A dispute which is the subject of a pending action in a court at the time the dispute is filed with the NHBA DRC, unless the matter was referred to the NHBA DRC by a court;

b) A dispute concerning a fee set by statute, rule, or order of a court, or other tribunal; or

c) A dispute that concerns an ethical issue.

Waiver of Liability & Immunity

All volunteer members of the NHBA DRC, all staff persons at NHBA, and the NHBA, involved in assisting parties in a dispute, must be protected from lawsuits, legal claims, and liability arising solely from their roles in the NHBA DRC process.

  • Consequently, all persons who avail themselves of the NHBA DRC’s services must agree that:
  1. No mediator, arbitrator,  staff  person  at NHBA,  and  the NHBA  involved  in NHBA DRC’s services of providing assistance to parties in a dispute resolution through the NHBA DRC, shall be sued or otherwise held responsible for any civil liability and/or damages for any aspect of dispute resolution process, unless such person acted intentionally, willfully and with malice; and
  2. All volunteer NHBA DRC Mediators should be afforded and have the same immunities from civil liability as set forth in NH RSA 490-E:5.

Nhba Drc Mediation General Provisions

  1. Notice of a dispute originates with a written communication to the New Hampshire Bar Association Dispute Resolution Committee/Staff Liaison.
  2. A written notice of dispute must contain the following information:

a) name(s) of all persons, including all attorneys, involved in the dispute;

b) whether there is a court case pending concerning the dispute; and

c) a clear description statement of the nature, facts and allegations surrounding the dispute. [2]

  1. A letter referring the dispute will be sent within three business days of receipt of the signed Mediation paperwork by the Staff Liaison for assignment to a volunteer committee member who shall be unbiased and impartial.
  2. A volunteer committee member will be assigned by the Staff Liaison or Committee Chair to participate in an informal or formal Mediation process of the dispute. Such member shall be assigned in rotation, but no member shall be required to accept a dispute if the volunteer believes her/his involvement would be a conflict of interest, violate a rule of the Committee, or create an impression of unfairness towards either party.
  3. The assigned volunteer committee member should communicate with the parties within seven business days of receipt of the referral, and gather facts, allegations, and other circumstances of the dispute.
  4. The assigned volunteer committee member handling the dispute may facilitate a resolution of the dispute by written or email correspondence, telephone calls, in- person meetings, conferences, or any other appropriate manner.
  5. The assigned volunteer committee member handling the dispute will attempt to resolve the dispute within 90 days.
  6. If Mediation is unsuccessful, Arbitration will be offered to the parties.
  7. Copies of final correspondence, if the dispute is resolved or not, must be sent to the parties and the Staff Liaison for the NHBA DRC, and the matter will be closed.
  8. If a party to the dispute refuses to participate in good faith in the dispute resolution process, parties and Staff Liaison for the NHBA DRC will be notified and the matter will be closed.
  9. Referrals from the Dispute Resolution Committee may be made to any other program within the Bar Association or other appropriate entities.

[2] Disputes which appear to raise an ethical dispute will be returned to the parties with a letter.

Mediation General Procedures

  1. The mediation process should be completed within 90 days from the date of the letter assigning the dispute to the assigned volunteer committee member.
  2. The assigned volunteer committee member shall request such additional information from the parties as may be necessary to promote an understanding of the issues by the parties and produce a meaningful compromise and voluntary resolution of the dispute.
  3. The assigned volunteer committee member may use the person’s signed release to obtain the attorney’s complete file whenever examination of the file would be helpful, but examination of the attorney’s file is not a mandatory procedure. Use of the client’s release form is a matter reserved to the sound discretion of the assigned committee member.
  4. The assigned volunteer committee member shall strive to effectuate a voluntary settlement of the dispute with the parties’ consent.
  5. The assigned volunteer committee member will destroy all materials after 60 days of concluding the mediation process.
  6. In a dispute that does not settle in Mediation, the parties will be offered the opportunity to participate in Arbitration through the NHBA DRC.

Nhba Drc Binding Arbitration

  1. If Mediation is unsuccessful, the parties will be asked by the mediator to consider Binding Arbitration, in accordance with the Binding Arbitration Rules and Procedures set forth below.
  2. If the parties agree to participate in Binding Arbitration, they also must agree to have one or a panel of three arbitrators to hear and decide the dispute. The parties will have 30 days to return the required forms necessary to commence Binding Arbitration. Ten days prior to the 30-day deadline, a reminder notice will be sent to one, or both parties, advising them they have 10 days in which to return the required forms, or this matter will be closed and is not subject to being reconsidered by this Committee. If the forms are not returned, a letter is sent to the individual initiating the dispute (copied to the other party), advising him or her that the time period for following through on binding arbitration has passed and the case is now closed.
  3. Once arbitration is completed, a report is prepared by the arbitrator/panel and forwarded to the parties involved.

Binding Arbitration Rules and Procedures

  1. The parties, by signing a Consent to Binding Arbitration form, enter into an agreement to arbitrate and further agree to incorporate this Committee’s arbitration procedures as part of their agreement.
  2. Arbitrations shall be subject to the provisions of RSA Chapter 542. The arbitrator, or panel of three arbitrators, from the NHBA volunteer members, shall be vested with all the quasi-judicial powers and immunities and shall assume all the duties conferred upon arbitrators by RSA Chapter 542.
  3. Arbitration hearings shall be conducted as administrative adjudications governed by RSA Chapter 541-A and are not subject to the formal rules of evidence and procedure used in the superior court.
  4. The burden of proof in arbitration shall be upon the initiator, unless it concerns an attorney/client fee dispute in which case the attorney shall have the burden of proof. The burden of going forward with the evidence shall ordinarily be upon the initiator as well. The burden of going forward may be shifted by the arbitrator at his or her discretion when warranted by the circumstances of the case, except in fee dispute cases where the attorneys share the burden of going forward.
  5. Any person may be summoned to appear before the arbitrator as a witness by serving a subpoena in the manner provided for legal actions, and the fees for such attendance shall be the same as fees for witnesses in the superior court.
  6. If all parties agree, they may waive oral hearing and may submit their contentions in writing, together with exhibits, to the assigned arbitrator, who may then determine the controversy on the basis of the documents presented. The arbitrator may, however, after due notice to all parties, require oral testimony from any party or witness.
  7. The assigned arbitrator shall schedule a hearing for a date certain within 45 days after receiving the case. The parties shall attempt to accommodate the assigned arbitrator’s hearing schedule and shall respond to any prehearing requests for the submission of witness lists, pre-marked exhibits, or similar information, including attendance at a prehearing conference.
  8. The arbitrator shall mail the parties a written notice which identifies all participating arbitrators, states the date, time and place of the hearing, advises the parties of their right to counsel, and contains such other information as may be necessary or appropriate under the circumstances of the case. This notice shall be mailed, first class postage prepaid, at least ten days before the hearing. Appearance at a scheduled hearing shall constitute a waiver of any deficiency with respect to notice of those issues which are specified in the arbitrator’s written notice.
  9. Two members of a three-member arbitration panel must agree upon a final decision or award in order for the decision or award to be valid. If any member of a three- member panel becomes unable to act during the pendency of the arbitration request, the proceedings shall be declared void and the matter reassigned to a new panel, unless all parties consent in writing to proceed with one of the remaining panel members as a sole arbitrator and agree upon the identity of that member.
  10. If any of the assigned members of a three-member arbitration panel are absent from any hearing in which evidence is to be introduced, the case shall be rescheduled unless all parties consent in writing to proceed with one member of the panel as the sole arbitrator and agree upon the identity of that member.
  11. Any party to an arbitration has the right to be represented by an attorney at any stage of the proceeding. But, after having been given a reasonable opportunity to obtain counsel and neglecting to do so, a party may not unduly delay the arbitration by seeking a postponement because he or she wishes to be represented.
  12. Any party may arrange to have a record made of the proceeding provided that:

a) name(s) of all persons, including all attorneys, involved in the dispute;

b) the requesting party notifies the arbitrator and the other party that a record will be made at least five days before the hearing date; and

c) the requesting party adheres to the arbitrator’s instructions establishing fair and reasonable procedures governing the preparation of the record and the distribution of copies to the opposing party and the arbitrator.

  1. Adjourned dates for the continuance of any hearing which cannot be completed on the day scheduled, shall be fixed for such times and places as the arbitrator may select with due regard for the circumstances of the parties and the desirability of a speedy determination. Upon request of a party showing good cause, or upon his or her own motion, the arbitrator may postpone an evidentiary hearing or any other stage of the arbitration proceeding.
  2. If, after being duly notified, a party fails to appear at the hearing, the arbitrator may:

a) continue the hearing;

b) enter a default judgment against the absent party; or

c) hear and determine the controversy upon the evidence produced, notwithstanding such failure to appear and enter a binding award.

  1. The arbitrator, or chair of a three-member arbitration panel, shall preside at the hearing and rule on the admission and exclusion of evidence and on all questions of procedure.
  2. The testimony of witnesses shall be given under oath and the arbitrator shall arrange for the administration of oaths to any witnesses testifying at the hearing.
  3. The arbitrator shall confirm all parties have received a copy of RSA Chapter 542.
  4. The arbitrator shall prescribe the order of proof and may allow opening or closing statements as a matter of discretion.
  5. Before closing the hearing, the arbitrator may expressly inquire whether the parties have further evidence to submit and shall establish a date certain for the filing of such further evidence as is determined to be admissible. The arbitrator may also establish a date certain for the submission of legal memoranda if requested by the parties or by the arbitrator.
  6. Before closing the hearing, the arbitrator shall announce the date when the record shall be closed. The decision shall be made, reduced to writing and served (by mail) upon the parties within 20 days from the date the record was closed.
  7. The final decision shall be signed by the arbitrator (including all members of a three- member panel). 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.
  8. The record may be reopened on the application of a party or upon the arbitrator’s own motion at any time before the decision is served. The parties may petition for reconsideration of the arbitrator’s decision within 10 days from the date it is served. Action shall be taken on such petitions within 10 days and modifications shall be made in the arbitrator’s original decision only for the purpose of correcting obvious errors of fact or law or to consider new and material evidence which could not have been previously known to the proffering party through the exercise of reasonable diligence.
  9. Unless otherwise agreed by the parties, the arbitrator may grant any remedy or relief customarily awarded in legal actions based upon personal service contracts. The award may include a direction for the payment of the prevailing party’s expenses related to the arbitration proceeding, but not for legal fees or for expenses incurred by the arbitrator.
  10. At any time before the service of the arbitrator’s decision, the parties may agree upon a settlement of their dispute. Once a settlement agreement is signed and filed with the arbitrator, the arbitration shall be dismissed and may not be reopened.
  11. In the event of the death or incompetence of a party prior to the close of the record, the proceeding shall be suspended for 90 ninety days and then shall be closed. The parties may agree to reopen the matter with the Committee. Either party may then proceed to the proper court to seek such relief as may be warranted. In the event of death or incompetence of a party after the close of the record, but prior to a decision, the decision rendered shall be binding upon the heirs, administrators or executors of the deceased and on the estate or guardian of the incompetent.
  12. The arbitrator’s decision need not be in any particular form but must include findings of fact and conclusions of law sufficient to support the result reached. In general, a decision shall consist of a preliminary statement reciting jurisdictional facts and background information, the issues presented, the position of the parties, a discussion of the arbitrator’s reasons for accepting or rejecting the various factual and legal arguments presented, the relief awarded.
  13. The arbitrator shall serve a copy of the decision upon each of the parties. The original and two additional copies of the arbitrator’s decision shall be placed in the case file and the arbitrator shall immediately forward the entire file to the Committee’s Staff Liaison. The Staff Liaison shall distribute copies of the decision to the other members of the Committee.
  14. An award rendered by an arbitrator may be enforced by the superior court consistent with the provisions of RSA 542:8.

Amendment and Supplemental Regulations

These NHBA DRC general provisions and procedures may be amended or modified by the New Hampshire Bar Association at any time and from time to time.

NHBA Dispute Resolution Committee

Purpose

NHBA Dispute Resolution Committee General Provision and Procedures

Purpose

Confidentiality

Jurisdiction

DRC Mediation

General Provisions

Mediation General Procedures

DRC Binding Arbitration

Binding Arbitration Rules and Procedures

Amendment and Supplemental Regulations