Mediation of cases rises in popularity

January 3, 2005

BY KEN KOBAYASHI, Advertiser Courts Writer

The early Hawai`i pioneers of mediation and arbitration recall how hard they had to work in the late 1970s and early 1980s to explain that the process is an alternative to resolving disputes in court.

"This is mediation, not meditation," Lou Chang, a Honolulu lawyer who does work as a mediator and arbitrator, remembers explaining to people.

Among early proponents, a common joke was how far they had to go to win acceptance among lawyers and others who believed a lawsuit was the only way to deal with disputes.

But the option has gained significant acceptance and popularity, and is cited by some lawyers and mediation and arbitration experts as one reason for the drop in Circuit Court lawsuits.

Now, "people now know what mediation is," Chang says. "It's part of the culture."

Among the pioneers are former Chief Justice Herman Lum and Chief Justice Ronald Moon, Chang says.

Perhaps the most high-profile example of the acceptance of mediation and arbitration was the settlement reached in July between University of Hawai`i regents and former UH president Evan Dobelle over his firing. No lawsuit was ever filed in that case.

Honolulu attorney Rick Fried, one of Dobelle's lawyers, says if the former president had filed a lawsuit, they probably would still be in the midst of pretrial questioning. "The case would just be warming up," he says.

Keith Hunter, president and chief executive officer of Dispute Prevention Resolution Inc., the largest mediation-arbitration firm in the state, says he believes mediation and arbitration is one of the factors for the decrease in lawsuit filings. The company has about 50 experts, including Chang and retired judges, to handle mediation and arbitration.

"I think there are more cases mediated in this country than there are cases going to trial," he says.

The advantages to resolving a Circuit Court-level dispute through mediation rather than a lawsuit is that it can be resolved in weeks, rather than months or years in the court system; it's less expensive than litigation, and the parties can tailor a settlement to fit their needs, mediation advocates say.

The settlement could include a letter of recommendation in job termination cases, an apology or a donation to a charity.

The downside, they say, is that some disputes require a court decision to finalize, if they involve public policy matters or a recurring problem that would set a precedent on how those matters should be resolved in the future.

Also, the parties must be willing to find a solution and not try to misuse the process to cost the other side money or to gather information, Chang says.

In addition, mediation and the settlements, if they do not involve government entities, are generally confidential, even if they involve matters of public interest.

Mediation usually involves lawyers representing a party, but Hunter says in about 10 percent to 20 percent of the cases, at least one of the parties doesn't have an attorney.

If people are considering resolving a dispute by mediation on their own, Hunter recommends first determining if the other side is willing to participate or calling a mediation and arbitration lawyer or company to contact the other side.

Hunter says the initial consultation will be free, but be prepared to clearly explain the dispute, the people involved and their positions .

The costs generally range from about $200 to $300 an hour for the mediator, which are shared by the parties, he says. An average two-party dispute might require about eight to 10 hours of the mediator's time, including preparation work and mediation sessions, he estimates.