I. Preamble and Background
Mediation is a process of dispute resolution in which an impartial third party intervenes in a dispute with the consent of the participants and assists them in negotiating a voluntary and informed settlement. Mediation is a separate and distinct activity from arbitration, adjudication, evaluation, counseling and therapy, although it may be used with these and/or other conflict resolution procedures.
In mediation, whether private or public, decision-making authority rests with the participants themselves. The role of the mediator includes but is not limited to assisting the participants in improving the definition of issues, reducing obstacles to communication, maximizing the exploration of alternatives, and helping them arrive at agreements that are fair, efficient, and stable.
Mediation is based on principles of communication, negotiation and problem solving that emphasize:
- The needs and interests of the participants.
- Procedural flexibility.
- Privacy and confidentiality.
- Full disclosure.
- Self determination.
As with other forms of dispute resolution, mediation must be built on public confidence and understanding. Persons serving as mediators, therefore, bear specific responsibilities to the mediation participants, to the mediation process, to the public, and to any specific agencies under whose auspices a mediation is taking place.
Recognizing that mediation is an increasingly accepted, respected, and desirable method of settling many disputes, the Hawai`i State Judiciary, through its Program on Alternative Dispute Resolution, convened a committee (Appendix 1) in September, 1985 to develop recommended standards. After reviewing literature relevant to this matter (Appendix 2) the committee drafted proposed standards, circulated them to additional mediation groups throughout the state, and completed its recommendations to Hawai`i’s Chief Justice on April 2, 1986. In 1999, Hawai`i’s Chief Justice requested a review of the standards by the dispute resolution community through the Hawai`i Chapter of the Society of Professionals in Dispute Resolution. This committee submitted recommendations to the Chief Justice on May 14, 2002.
Based on the work of these committees, the Judiciary broadly endorses the use of mediation for many types of disputes and recommends that persons serving as public or private mediators in the State of Hawai`i subscribe to the following guidelines of practice. It is not the intent or desire of the Judiciary to regulate the work of mediators. The judiciary does, however, encourage mediators to view this document as general guidelines of practice.
Reporter Note: Consensus of those attending the October 6, 1999 SPIDR Hawai`i meeting on the standards that mediation as a field is still developing and guidelines should be aspirational, not prescriptive. This is consistent with the language in the Standards and the Hawai`i Supreme Court’s resolution adopting the Standards.
These guidelines are addressed to the practice of mediation as commonly understood. It is recognized that practitioners of ho`oponopono and other culturally-based conflict resolution and conciliation methods may or may not find some or all of the guidelines appropriate or useful.
Reporter Note: This paragraph recognizes the diversity of practice in Hawai`i, including cultural practices. These guidelines are not meant to cover practices not considered by practitioners and/or the public to be “mediation,” e.g., ho`oponopono.
Go to: II. The Process
- Preamble and Background
- The Process
- Costs and Fees
- Confidentiality & Information Exchange
- Professional Advice
- Parties’ Ability to Negotiate
- Concluding Mediation
- Training & Education
- Professional Relationships
- Advancement of Mediation
- Committee On Mediation Standards
- Documents Consulted