Mediation in New Hampshire

When a New Hampshire court orders mediation

RSA 461-A:7 lets a court order mediation in any case involving disputed parental rights and responsibilities or grandparent visitation rights, including modification requests. Once ordered, mediation generally covers all relevant issues in the case, including child support and property and alimony questions under RSA 458, unless the court limits the scope.

The statute lists reasons a court may decline to order mediation. These include undue hardship to a party, a finding of alcoholism or drug abuse unless all parties agree anyway, and an allegation of serious psychological or emotional abuse. Another reason is the lack of an available mediator within a reasonable time. RSA 461-A:24 separately requires mediation, either privately arranged or through the court, before any hearing to modify or enforce a college expense agreement.

Domestic violence limits on mediation

RSA 461-A:7(V) bars a court from ordering mediation if there has been a finding of domestic violence as defined in RSA 173-B:1. This bar does not apply if all parties agree to mediate anyway. The same limit applies to mediation of child support arrearage disputes under the statute's contempt provisions. Either party can also move to have an assigned mediator replaced for good cause under the statute.

Certified family mediators

New Hampshire requires its court-referred family mediators to be certified under RSA 328-C, administered by a board of family mediator certification. To become certified, an applicant must complete at least 48 hours of board-approved training, including at least 8 hours on domestic violence, plus family dynamics and relevant law. The applicant must also complete a 20-hour internship with a certified mediator. Finally, the applicant must submit at least three recommendations from people who worked with them on family mediation.

Certification lasts three years and requires 24 hours of continuing education to renew. The board maintains a public list of certified family mediators and training programs. A qualified intern can participate in mediation under a certified supervisor's direct oversight.

Confidentiality of mediation

RSA 461-A:7(VII) requires mediation to be held in private, with all related communications privileged, confidential, and inadmissible in court, subject to the exceptions in RSA 328-C:9. That chapter spells out those exceptions. The privilege can be waived by all parties. It does not cover a material misstatement of fact that would amount to perjury. It also does not protect information about abuse, sexual abuse, or neglect, or about a felony or misdemeanor that has been or is about to be committed. A certified mediator generally cannot be subpoenaed to testify about a case outside those exceptions.

Fees and how agreements become orders

When both parties in a New Hampshire mediation are indigent, the mediator is paid a set fee established annually by state supreme court rule. That fee is drawn from the mediation and arbitration fund. That fund is partly financed by a percentage, capped at 25 percent, of the entry fee paid on domestic relations petitions.

Under RSA 461-A:7(VIII), any agreement the parties reach on all or part of the disputed issues must be put in writing. It must be signed by each party and filed with the court as soon as practicable. If the mediator decides mediation is not helping resolve the dispute, the mediator reports that back to the court. The case then returns for the court to decide the remaining issues.