Private practice,
public service

Mediators like Justice Klein help resolve conflicts

By Constance Hassell

Justice Robert Klein has seen a number of changes in the practice of law since he moved from government service into the private practice of law almost eight years ago. When he retired from the Supreme Court of Hawai'i, the controversies he worked with had been distilled into legal arguments with parties vying to win in an adversarial process.

Justice Robert Klein

Now, Justice Klein is able to counsel clients on ways to avoid controversies altogether, or minimize the draining effects of litigation. This is due in part to the growing recognition and use of mediation, a process that makes resolution of disputes more accessible to most of us.

What is mediation?

The mediation process aims to resolve disputes in a manner all participants agree upon, in a setting less formal and with fewer rules than a courtroom. The mediator does not take sides or make decisions about the final result as does a judge or arbitrator. A decision if and how to end the dispute is up to the people actually involved. Mediation can help repair and preserve ongoing relationships, such as in a family or business.

What does the mediator do?

The mediator serves as a broker, go-between, and sounding board. The mediator helps focus on the future and step away from the right/wrong model that is often part of the legal process.

Fairness of the mediation process is the mediator's responsibility. Generally, everyone involved in the case talks about their point of view. There is usually more time for full expression in mediation than in a court or arbitration session. Mediators try to make each person feel comfortable in explaining the situation. For example, the mediator can listen to one person with the other person out of the room.

Privacy is seen as part of the fairness of the process. Generally, “what happens in mediation stays in mediation.” And when one person meets with the mediator in a separate session (other people not in room), the mediator will not disclose what is said if asked to keep it private.

Why mediation?

Justice Klein is a mediator and has accompanied his clients to mediations managed by other mediators. He notes that mediation is usually most effective early in a conflict. Success of the mediation process often rests on the willingness of the parties to resolve their differences. Also important is the selection of a mediator.

Although early selection of mediation usually saves time, money and emotional investment, even cases which have already been to court (and are now on appeal) can settle through mediation. Justice Klein is a volunteer appellate mediator for the Supreme Court of Hawai'i's Appellate Mediation Program.

This program assigns certain civil appeals to mediation, with the premise that “it is rarely too late to mediate.” In fact, even after a case has been to court, roughly one half of the cases in the program reach a resolution and the appeal is dismissed. Not only can the parties work to get an earlier resolution, but the judges and justices of the appellate courts can turn their efforts to other cases.

The Judiciary is grateful for the generosity of volunteers such as Justice Klein who see mediation as an important option for resolving conflicts.

Justice Klein graduated from Stanford University and the University of Oregon School of Law. He served as a judge from 1978 to 2000. He began as Associate Justice on the Supreme Court of Hawai'i in 1992. He is now a partner with McCorriston Miller Mukai MacKinnon. He is also general counsel for OHA's Board of Trustees.

Learning More about Mediation

If you are interested in learning more about mediation, there are community mediation centers on O'ahu, Kaua'i, Maui, and Moloka'i, and two on Hawai'i Island. Additionally, there are mediators in private practice in all four counties. You can also visit the website for the Center for Alternative Dispute Resolution, a Judiciary program office with statewide responsibilities to inform the public Hawaii about mediation. www.courts.state.hi.us/cadr

Constance Hassell administers the Hawai'i Appellate Mediation Program for the
Hawai'i State Judiciary's Center for Alternative Dispute Resolution.