Alternative Dispute Resolution in Hawaii: Mediation and Arbitration

Alternative dispute resolution (ADR) in Hawaii encompasses structured processes — principally mediation and arbitration — that resolve legal disputes outside of formal court adjudication. Governed by a combination of state statute, court rules, and federal frameworks, Hawaii's ADR sector spans civil, family, commercial, and labor contexts. This reference describes how the sector is organized, the professional and procedural standards that apply, and the boundaries separating voluntary private processes from court-annexed or mandatory proceedings.

Definition and scope

Alternative dispute resolution refers to any method of resolving a legal dispute that substitutes for, or supplements, litigation before a judge or jury. In Hawaii, the primary ADR forms are mediation, arbitration, and — less commonly — neutral evaluation and conciliation.

Mediation is a facilitated negotiation in which a neutral third party assists disputing parties in reaching a voluntary agreement. The mediator holds no adjudicative authority; any resolution requires the consent of both parties. Hawaii Revised Statutes (HRS) Chapter 658H — the Hawaii Mediation Act — governs mediation practice and protects mediation communications as privileged and confidential.

Arbitration is a quasi-judicial process in which one or more arbitrators hear evidence and render a binding or non-binding decision called an award. Binding arbitration forecloses further court review on the merits. HRS Chapter 658A, the Hawaii Uniform Arbitration Act, establishes the legal framework for domestic arbitration agreements, the conduct of proceedings, and the enforceability of awards. Federal arbitration agreements in Hawaii are governed by the Federal Arbitration Act (9 U.S.C. §§ 1–16), which preempts conflicting state law where interstate commerce is involved.

The regulatory context for Hawaii's legal system provides background on how state and federal authority interact across these overlapping frameworks.

Hawaii's court system integrates ADR through formal programs. The Hawaii Judiciary's Court-Connected ADR program administers mediation services in circuit and district courts. Family court mediators operate under separate rules governed by the Family Court of the First Circuit and parallel circuits statewide.

Scope boundary: This page addresses ADR as structured under Hawaii state law and Hawaii Judiciary programs. It does not cover federal administrative ADR under the Administrative Dispute Resolution Act of 1996 (5 U.S.C. §§ 571–584), tribal dispute processes under Native Hawaiian governance structures, or international arbitration under UNCITRAL or ICC rules, even where one party is a Hawaii-domiciled entity. Disputes involving exclusively federal agency action fall outside the scope of HRS Chapter 658A and 658H.

How it works

Hawaii ADR proceedings follow recognizable procedural phases, though the precise structure differs between mediation and arbitration.

Mediation process:

Initiation — Parties agree voluntarily, are referred by a court, or fulfill a contractual clause requiring mediation before litigation.
Mediator selection — Parties jointly select a mediator from a private roster or from the Hawaii Judiciary's approved panel. The Program on Alternative Dispute Resolution maintains mediator qualification standards.
Pre-session preparation — Each party submits a brief position statement. No formal discovery is required.
Joint session and caucus — The mediator may convene joint sessions or separate caucuses. Communications during mediation are privileged under HRS § 658H-4.
Agreement or impasse — If the parties reach agreement, the mediator or counsel drafts a settlement agreement that may be entered as a court order. If no agreement is reached, the matter returns to its original procedural posture.

Arbitration process:

Agreement to arbitrate — Either a pre-dispute clause in a contract or a post-dispute submission agreement establishes jurisdiction.
Arbitrator selection — Under HRS § 658A-11, parties may agree on any selection method; absent agreement, each party appoints one arbitrator and the two appoint a third.
Preliminary hearing — The arbitral panel sets schedules, discovery parameters (limited compared to civil litigation), and hearing procedures.
Hearing — Evidence is presented; the Hawaii Rules of Evidence do not apply with the same force as in court, giving arbitrators discretion over admissibility.
Award — The arbitrator issues a written award. Under HRS § 658A-23, a court may vacate an award only on narrow grounds: fraud, corruption, arbitrator misconduct, or the arbitrator exceeding authority.

The key structural contrast between the two forms: mediation preserves party control over outcome; arbitration transfers decision-making authority to the arbitrator.

Common scenarios

ADR in Hawaii is concentrated in six primary practice areas:

Civil litigation — Circuit courts routinely refer contested civil cases to mediation under the Hawaii Judiciary's Civil Mediation Program before trial is set.
Family and divorce — Child custody, visitation, and property division disputes in family court are subject to mandatory mediation referrals under Hawaii Family Court rules in contested proceedings.
Landlord-tenant — Hawaii landlord-tenant law disputes, including security deposit and habitability claims, are frequently resolved through community mediation centers such as the Mediation Center of the Pacific, which has operated on Oahu since 1976.
Labor and employment — Collective bargaining impasses and employment discrimination claims may proceed to arbitration under CBA provisions or EEOC mediation before formal charge adjudication (EEOC Mediation Program).
Consumer and commercial — Hawaii consumer protection laws disputes and commercial contract claims commonly include pre-dispute arbitration clauses governed by HRS 658A.
Construction — Contractor and subcontractor disputes frequently specify binding arbitration under American Arbitration Association (AAA) Construction Industry Arbitration Rules, which Hawaii courts recognize under HRS 658A.

Decision boundaries

Selecting between mediation, arbitration, and litigation requires assessing four structural variables:

Binding authority: Mediation produces no enforceable result unless the parties execute a settlement agreement. An arbitration award under HRS 658A is directly confirmable as a court judgment under § 658A-22, carrying the same enforcement mechanisms as a civil judgment.

Confidentiality: Mediation communications are privileged under HRS § 658H-4 and generally inadmissible in any subsequent proceeding. Arbitration records are not automatically confidential; absent a specific confidentiality agreement or institutional rule, awards may become public when confirmed by a court.

Appellate access: Litigation judgments are reviewable through the full Hawaii appellate procedure framework, including the Intermediate Court of Appeals and Hawaii Supreme Court. Arbitration awards are reviewable only on the narrow statutory grounds in HRS § 658A-23; substantive error of law is not a basis for vacatur. Mediated agreements, once entered as court orders, follow standard civil appellate rules.

Cost and duration: Court-connected mediation in Hawaii is available on a sliding-scale or no-cost basis through community centers. Private commercial arbitration through AAA or JAMS involves filing fees and arbitrator compensation that can exceed $10,000 for complex disputes, though proceedings typically resolve faster than full civil trials.

Parties whose disputes involve non-waivable statutory rights — including claims under Hawaii's employment discrimination statutes (HRS Chapter 378) or consumer protection claims under HRS Chapter 480 — should confirm whether a pre-dispute arbitration clause lawfully covers those claims, as courts apply heightened scrutiny to such waivers. The broader Hawaii legal services landscape includes civil rights and employment attorneys who assess enforceability of arbitration provisions in contested employment contexts.

References

📜 4 regulatory citations referenced · 🔍 Monitored by ANA Regulatory Watch · View update log

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