1. What Is Mediation?
Mediation is a form of Alternative Dispute Resolution (ADR) that is offered by the Hawaii Civil Rights Commission (HCRC) as an alternative to the traditional investigative and litigation processes. Mediation is an informal and voluntary process in which a trained mediator(s) assists the parties to reach a negotiated resolution of a complaint. The mediator does not decide who is right or wrong and has no authority to impose a settlement on the parties. Instead, the mediator helps the parties to jointly explore and resolve their differences.
2. How Was The Program Started?
The HCRC mediation program was initiated by the Commission and was developed by staff with the help of the Mediation Centers of Hawaii (MCH) and the Judiciary’s Center for Alternative Dispute Resolution. HCRC reviewed mediation programs at other civil rights agencies across the country and conducted a short pilot program before putting the full program into effect in September 1998.
3. How Do Parties Access The Program?
HCRC investigators inform complainants of the mediation program at the intake interview. When the complaint is sent for signing, a Mediation Option Form is included, in which complainant can opt for mediation by an MCH center or private mediation. (See Question #7 for more on private mediation). The mediation coordinator may follow up with complainants to encourage mediation. Mediation is not offered on all complaints. However, parties can request mediation through the HCRC program or pursue mediation outside the HCRC process.
If a complainant indicates a willingness to mediate, the Mediation Option Form is sent to the respondent at the same time the complaint is served. The mediation coordinator typically follows up with the respondent to explain and encourage mediation. If the respondent opts for mediation, both parties are sent an Agreement to Mediate, which states the rules of the mediation session and requires the confidentiality of all sessions. A Mediation Intake Form is prepared by the coordinator containing the basic allegations and facts of the case and sent to the appropriate center, which makes all scheduling arrangements.
4. Who Provides The Mediation Services?
HCRC’s mediation provider is the Mediation Centers of Hawaii, which consists of 5 not- for-profit centers in Honolulu, Hilo, West Hawaii, Maui, and Kauai. Each center is semi-autonomous in the fees it charges and the procedures used; however, all follow the same basic approach of facilitative (not evaluative) mediation. This means that the mediators do not evaluate the strengths and weaknesses of a case, but strive to facilitate communication between the parties and assist them in finding potential solutions that will work for all.
5. What Is The Cost?
Fees vary among the centers with $50 per party/session being a typical fee, charged at the Mediation Center of the Pacific. In instances where there is a financial hardship, the fee can be reduced or waived.
The Mediation Center of the Pacific has teleconferencing facilities for cases that involve mainland parties, corporate counsel and/or officers. The parties are responsible for paying all toll charges.
6. Who Are The Mediators?
The mediators from the five centers are highly trained volunteers who come from a broad variety of backgrounds. In HCRC cases, the mediators are experienced mediators who have been trained by the HCRC. Many mediators are also attorneys. In most instances, two co-mediators, male and female, are assigned to a case. Parties are not allowed to choose mediators. However, only those mediators who have received training in the area of civil rights are assigned to HCRC cases.
Mediators also receive on-going assistance from the coordinator and annual trainings and update on civil rights law from HCRC enforcement staff. Approximately 60-90% of all cases referred to MCH (depending on the center) have been successfully settled by the mediation centers during the program.
7. What If I Want A Private Mediator?
Parties who want to review the biographical information and select the mediator they feel will best meet their needs, may elect private mediation. One option is Access ADR, which is a program of the Mediation Center of the Pacific, and which allows the parties to choose a mediator at a reduced hourly rate. The second option is for the parties to hire a private mediator on their own. Many private mediators use the evaluative model of mediation. Both options provide parties with the opportunity to review mediator qualifications and background for purposes of selection. Both options also require higher fees for services provided and the parties are responsible for agreeing on how the fees will be paid, although Access fees are lower than most private mediators.
About 15% or more of the parties opt for private mediation. Often, a respondent pays for the mediator, as most complainants are unable to contribute. The same rules as to deadlines, tolling of responses, and other HCRC practices apply, as the HCRC retains jurisdiction during the private mediation. The mediation coordinator monitors all private mediations and is available to assist at the parties’ or mediator’s request.
8. How Is The Mediation Scheduled?
Upon receipt of the Mediation Intake Form from HCRC, a case manager from one of the respective centers contacts the parties to schedule the mediation on a date that is convenient for everyone. Weekend and evening sessions are available. Typically a session can be scheduled within about 6 weeks. The typical session lasts no more than 3 hours. If the mediation is not completed during the scheduled session, an additional session may be scheduled.
There is a 90-day time limit for completion of the mediation. The coordinator may extend this if there is a cogent reason to do so. It is the parties’ responsibility to request an extension for any mediation that is continued beyond a mediation deadline. Neither extensions nor continued tolling of response due dates is automatic; both must be approved by HCRC. No mediation will be extended beyond 6 months except upon approval by the executive director.
From the time the Mediation Intake Form is sent to the center, until an agreement or notice of no agreement is returned to HCRC, the due date for the respondent’s response is tolled, subject to the condition above. Tolling of response due dates may be also be granted by the coordinator to allow parties to consider electing mediation in good faith. Typically, the respondent is allowed 21 days to file the response from the date of written or verbal notice of a failed mediation, but this time period may be modified in the coordinator’s reasonable discretion.
9. How Does The Mediation Process Work?
The sole purpose of HCRC mediation is discussion and settlement between the parties. Therefore, no evidence is taken and no witness testimony is allowed. At the start of the session, all participants are required to sign a confidentiality agreement, which prohibits the subpoena of any mediator, document, or party as it relates to the content of the session. Position statements by the parties are typically not required at any of the community mediation centers. However, if the parties request submission of such statements or if the parties utilize the Access ADR or commercial mediators, position statements will be submitted if allowed by the mediator.
If the parties are able to reach an agreement in mediation, the mediators will help them put the terms of the settlement in writing at the session. Settlement terms may range from simple clarifications of an incident to an apology, letters of reference, reinstatement, affirmative action (such as policy changes), and monetary settlements. Every written agreement includes a statement that it is a full and final settlement of all charges and each complainant signs an HCRC Withdrawal Form withdrawing the complaint. The complaint is dismissed with prejudice by the investigator and the agreement is enforceable between the parties.
HCRC is not a party to any agreement, unless reasonable cause has been found to believe discrimination has occurred. The HCRC Executive Director reviews all agreements to determine whether any further affirmative action might be required of the respondent. However, this has no effect on the enforceability of the agreement between the parties.
10. What If There Is No Agreement?
If no agreement is reached, the case is returned to investigation. During mediation, a firewall exists between the mediation coordinator and the investigation unit and no substantive details of the session are made available to the investigators. The mediation centers normally do not reveal any details of the discussions to the mediation coordinator other than procedural matters and the agreement itself. Attorneys representing parties who have agreed to mediation, should contact the mediation coordinator, rather than the investigator, if they have any questions.
11. What Types Of HCRC Cases Are Referred To Mediation?
Almost all cases referred are early-stage, normally before the response is filed. However, mediation can occur at any stage in the process, even when cases are docketed for hearings before the Hearings Examiner (contested cases). Cases where reasonable cause has been found to believe discrimination has occurred can also be referred (cause cases). These cases are treated no differently from other cases, except that the Executive Director is a party on behalf of the complainant at the session. HCRC has submitted a significant number of cause and contested cases to mediation. The complainant has a right to intervene and participate in these mediations.
12. Can My Attorney Or Advocate Participate In The Mediation?
Attorneys and other representatives (i.e. advocates) may be present and participate in the mediation session, if both parties and the mediator agree. However, additional people (i.e. friends, relatives, etc.) who are not parties to the mediation will generally not be allowed to participate. If an attorney intends to appear without a party, he or she must inform the mediation center in advance so that consent may be obtained from the other party or counsel.
Attorneys who participate in the mediation can work with the mediators to draw up an informal (but legally enforceable) agreement at the session and draft more formal settlement documents following the session, as long as they are consistent with the agreement reached.
13. What If I’m Not Satisfied With The Mediation Process?
Any party may stop the mediation at any time if they feel it is not productive. Following the mediation, all parties are sent evaluation forms to rate their experience and the mediators. Note: On a scale of 1-5, the average score for recent years has been in the 84th – 90th percentile. This indicates a generally high level of confidence by parties and counsel in the mediation process.
14. How Successful Is The Mediation Program?
In fiscal year 2005, over $400,000 in settlements was mediated and a wide range of non-monetary agreements reached. There were 39 completed mediations and an overall 59% settlement rate among all mediators for this period.
15. How Can I Get More Information?
For further information contact Al Lynde, commission administrative assistant and attorney mediation coordinator, at (direct) 586-8647, email: [email protected]. You may also consult the HCRC website at www.hawaii.gov/labor/hcrc. If you have any questions regarding a particular center, call:
1) Mediation Center of the Pacific (521-6767);
2) Mediation Services of Maui (808-244-5744);
3) Ku’ikahi Mediation Center ( Hilo) (808-935-7844);
4) West Hawaii Mediation Center (808-885-5525); and
5) Kauai Office of Economic Opportunity Mediation Program (808-245-4077).