Headed for court? Mediation offers more control, lower cost

“I’ll see you in court” is a declaration we often read in books, and hear in movies and television shows, ultimately leading to a dramatic courtroom scene with witness meltdowns and fiery closing arguments by the attorneys. And we’re not just talking about cases involving serial killers or murder-for-hire. Stories about civil legal matters — employment discrimination, corporate misconduct and intellectual property theft — have also become best-sellers and Hollywood hits.

While most civil cases aren’t headline-making or trending on Twitter, they can be just as emotionally taxing and potentially expensive for the parties involved. Fortunately, in Hawaii there are options to civil litigation.

One of those options is mediation, which is a dispute resolution process where an impartial mediator or “neutral” helps guide the parties to resolve part or all of a dispute voluntarily, informally and confidentially.

Mediation offers several practical advantages. The parties can often resolve their dispute without the formality, costs, uncertainty and stress that come with litigation. Another benefit of mediation is the level of control. Unlike litigation or binding arbitration, where decision-making rests in the hands of a judge, jury or arbitrator, the parties in mediation retain control over the terms of any agreement reached.

Mediation is also widely accessible. There are private mediators who include retired judges and attorneys who specialize in various areas of the law. Another option is the community mediation centers located on Oahu, Maui, Kauai and Hawaii Island, which charge a reasonable rate or on a sliding scale for those who cannot afford it. Parties with or without attorneys can participate.

Mediation is also available through court referrals. The judges in all Circuit, District and Family Courts, as well as the volunteers at the Judiciary Self-Help Centers, refer hundreds of cases to the community mediation centers every year. Referrals include auto accidents, business, civil rights, condominium, consumer-merchant, domestic, education, family, foreclosure, homeowner association, employer-employee, landlord-tenant, real estate and temporary restraining order matters.

Mediation is even available at the courthouses for small claims and residential summary possession cases. The Judiciary and the Mediation Centers of Hawaii (MCH) provide on-site mediation services for all small claims and residential landlord-tenant cases statewide. Mediations are held at the District Courts or, in some instances, at the mediation centers, at no cost to the parties for the mediator’s services.

For those contemplating divorce, there is a free seminar on “Divorce Law in Hawaii” held at the Hawaii Supreme Court, and on a pilot basis at the Kapolei Judiciary Complex. Divorce law and settlement options are covered, as well as a possible process in which a trained mediator helps the parties privately decide for themselves the terms of their divorce (see www.courts.state.hi.us/self-help/divorce/divorce_law_in_ hawaii).

For cases on appeal, the Appellate Mediation Program (AMP) administered by the Center for Alternative Dispute Resolution offers mediation in selected civil cases. Retired judges and attorneys serve as volunteer mediators. The appeal is temporarily stayed during the mediation. A variety of cases are resolved through the program, including foreclosure, landlord-tenant, business and divorce cases.

Although conflict may be a part of life, mediation can open the door to early and workable solutions.

Cecelia Chang is director of the Center for Alternative Dispute Resolution at the Hawaii State Judiciary.