Haw. App. Med. Prog. R. 6
The mediator's role is to facilitate communication and negotiation between parties to reach a voluntary agreement to settle their case. If the parties do not resolve all issues, the mediator may help them simplify, clarify, and reduce the issues on appeal. The mediator may withdraw the case from the program before mediation begins, or terminate mediation if the mediator decides that the process is unproductive or inappropriate.
Haw. App. Med. Prog. R. 6
COMMENTARY:
Mediators generally use a consensus-building style of mediation in conducting appellate mediations for the court. Usually, the mediator begins the process by explaining the goals of mediation, the role of the mediator, the mechanics of the process (including the possibility of private sessions with parties), and the confidentiality of the process. The mediator may remind the participants that although the mediator guides the process, the parties retain control over the result.
Following the introductory remarks, the mediator usually asks each party to provide background on the dispute, to discuss briefly the issues on appeal, and to recount the settlement history. The purpose of the initial joint session is to build rapport with the participants, to familiarize the parties with the process, and to provide the mediator with relevant information. Discussions proceed in joint session until the mediator finds it appropriate to begin private sessions. In private sessions, the mediator may work with the parties to develop a nonpartisan evaluation of the merits of each side's legal and settlement positions, and an assessment of the potential benefits, risks, and costs of various options.
Generally, the mediator then initiates negotiations, often alternating individual sessions with the parties. The mediation process is flexible and, in certain situations, parties may not meet in joint sessions. The process continues until either a settlement or an impasse is reached.
Rule 3.1(e) of the Hawai'i Rules of Appellate Procedure stays preparation of the record, effectively staying preparation of briefs. However, when parties opt-in to the program while briefing is incomplete, transcripts are unfinished, or even after briefing is complete, the parties may choose either that:
(1) all deadlines be postponed, or
(2) the appeal proceed on the appellate and program tracts simultaneously.
When the mediator concludes that the process is complete, the program enters an order with the appellate clerk that either returns the case to the appellate docket or states that a tentative settlement has been reached. The parties have 30 days to file the appropriate documentation with the court; otherwise, the case will be returned to the appellate docket.
The program's involvement in the case terminates when the Mediator's Report is filed. The program may resume jurisdiction over the case upon a joint request by the parties.
To ensure that time spent in mediation is productive, the mediator may end the mediation if the mediator decides that the process is unproductive or inappropriate.