Mediation has become a very effective litigation tool in Hawaii. We are asked about the possiblity of a mediation by clients and potential clients almost daily. Although mediation is practiced throughout the United States, the people of Hawaii, with their unique cultural history, seem particularly well-equipped to effectively use mediation. Although I was trained to practice law in New York, I moved to Hawaii in 1993. I have personally observed that Hawaii has a strong preference to mediation and that some of our finest jurists actively participate in this process.
For those unfamiliar with this practice, Mediation is a device in which parties to a dispute agree on an impartial third person who guides the litigants to a settlement using various negotiation and/or communication techniques. Although Mediation may serve several purposes, the overall goal is to assist the parties to find a way to solve their own problems usually through a negotiated settlement.
The selection of the mediator is critical. I believe that the parties should look for the following factors in a mediator:
1. The mediator has no conflict of interest. Obviously, if the mediation is to succeed, the litigants have to be able to rely that the mediator is completely unbiased and is attempting to guide them to a fair resolution of their dispute.
2. The mediator has adequate time to devote to the case. In Honolulu, some of the most talented mediators must be retained months in advance. If the potential mediator does not have time to devote to your case, find another mediator.
3. The mediator should be able to meet the parties’ expectations with regard to timing. Some cases absolutely must be resolved immediately. Counsel should take this into consideration when selecting a mediator.
4. The mediator should be completely candid and honest with all aspects of the process. If the potential mediator neglects to tell you about an important conflict until the mediation has begun, you may need a new mediator.
5. The mediator must be qualified. The goal is to settle the dispute. It does not necessarily aid the process if the mediator is a friend of all of the lawyers. The mediator does not have to be your friend. His or her job is simply to find a way to settle your case.
Finally, the litigants should understand that if a mediation is to be successful, they likely must be willing to compromise. If your litigation posture is such that you must “destroy” the opposing party, you certainly will not do so in a mediation. If you are not prepared to compromise, you are likely not ready to mediate.
For a description of our experience in mediations and arbitrations, please click the following link:
Mediation and Arbitration in Hawaii