NH subcommittee reviews family court mediation, ADR programs and gaps in coordination with criminal cases

The House Children and Family Law Committee's subcommittee on family court met April 1, 2025, to review the New Hampshire Judicial Branch's mediation and alternative dispute resolution (ADR) programs and discuss recommendations for the family division of circuit court.

The briefing, led by Erin Cregan, general counsel for the judicial branch, and Heather Culp, senior administrator for the circuit court, summarized program statutes, usage data and operational details for divorce-and-parenting mediation, reopened-case mediation and neutral case-evaluation sessions. Committee members asked about confidentiality protections, how active domestic-violence matters affect mediation eligibility and whether better cross‑agency and cross‑court information systems could reduce missed case links.

Culp told the subcommittee that the statute creating the judicial branch's Office of Mediation and Arbitration was passed in 2007 and that the branch follows those statutory goals when designing ADR services. She said the office manages ADR programs across the supreme, superior and circuit courts and that family-division ADR includes divorce-and-parenting mediation, minor guardianship mediation and neutral case evaluation in certain contested matters.

Key figures and process details presented to the subcommittee: - Calendar year 2023: roughly 3,400 mediation sessions in divorce-and-parenting cases out of an estimated total case volume of about 6,700; Culp said she can provide exact numbers on request. - In cases with minor children involved, “a little over 50 percent” of cases were referred to mediation; about 25 percent of divorce cases without minor children went to mediation. - Culp said about 40 percent of divorce-and-parenting matters do not proceed to either a hearing or mediation because parties file complete documents, withdraw, or resolve the case outside those tracks. - The branch generally schedules mediation within 30 to 45 days after the first-appearance informational session that a specialized case manager holds with litigants. Case-manager conferences are typically scheduled for one to two hours; mediation sessions are offered in two-hour blocks.

On statutory limits and domestic-violence cases, Culp described how the governing provision cited in the briefing (referred to in materials as “4 61 a 7”) treats mediation as a "may" referral in statute but said the branch treats it as a strongly recommended option while providing alternatives and protections where mediation would be unsafe. She said an active civil protection order under the statute referenced in committee as “1 73 b” permits parties to go to mediation only with the explicit consent of both sides and with additional protections (including the possibility of remote mediation). For criminal protective orders tied to pending criminal prosecutions, she said the branch does not permit mediation because prosecutor consent would also be required.

Culp explained confidentiality and privilege protections: “No. The mediator does not speak with the judge. That's prohibited under our rules,” she said. Mediators prepare an ADR report that goes in the court file summarizing whether a case settled wholly, partially, or not at all, but mediators do not relay details of the mediation to judges. She also cited statutory and certification-based protections for mediators (noted in the briefing as provisions including “RSA 3 3 28 c”), and said mediators have been able to quash subpoenas in the past though she was not aware of successful compelled testimony in these programs.

The subcommittee discussed neutral case evaluation as an ADR alternative. Culp said neutral case evaluators are typically retired judicial officers who provide a three-hour session and can offer an evaluative perspective about what would likely happen at trial. These sessions are most often used by parties represented by counsel, are offered later in a case after mediation has been attempted, and are limited by the availability of retired judicial officers (each evaluator usually can hold two three-hour sessions per day).

Committee members asked several operational questions: whether mediators can recommend rulings to judges (Culp said they may not, beyond the ADR report placed in the file), how the branch ensures parties come to mediation prepared (case managers and the first-appearance information session provide document checklists), and whether mediators or the court may compel production of withheld financial information (Culp said mediators can schedule follow-up sessions and request documents but a party can end mediation and return to the court track, where a judge may set a temporary hearing and subpoenas may be sought through normal court procedures).

Several representatives raised concerns about cross-court and cross-agency awareness of related criminal and civil matters. Culp acknowledged limits where cases and agencies are geographically separate and noted the legislature has recently funded a bail-data platform intended to help bridge some information gaps; she said it was early in procurement and that adding broader family‑court cross‑reference features would raise additional costs and confidentiality questions because many family-division case types are confidential. She said decisions about expanding data sharing or changing confidentiality rules rest with the legislature because statutes define what is confidential and when information may be shared.

On resources and scheduling, Culp said the branch currently has sufficient mediators to meet scheduled referrals but that neutral case evaluation capacity is constrained by the limited pool of retired judicial officers who provide that service. She noted areas where the branch offers services statewide that many other states do not: New Hampshire provides court‑contracted family mediation to litigants regardless of income, rather than requiring payment or waiving the requirement for those who cannot afford it.

The subcommittee asked for additional materials and follow-up steps. Culp said 2024 statistical updates had just been entered and she expected to produce those results within about six weeks. The meeting record shows the chair appointed Representative Nelson as subcommittee clerk, and the chair scheduled the full committee to meet next week; the subcommittee will not meet again for two weeks.

The discussion also touched on pending legislative work: committee members mentioned House Bill 553 (referred to in session materials as “5 53”) concerning definitions of child endangerment and abuse-and-neglect statutory language; committee members asked the judicial branch to provide technical assistance and data where helpful for drafting revisions.

The session closed with committee members thanking counsel for the briefing and noting next steps for document distribution and data follow-up.