Hawaii Bar Journal - November 2022 by Hawaii Bar Journal

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EDITOR IN CHIEF Carol K. Muranaka BOARD OF EDITORS Christine Daleiden Joseph Dane Susan Gochros Ryan Hamaguchi Cynthia Johiro Edward Kemper Laurel Loo Melvin M.M. Masuda Eaton O'Neill Lennes Omuro Brett Tobin

ARTICLES 44

When Divorce Mediation Undesirably Breeds More Litigation by Tom S. Tanimoto and P. Gregory Frey

OF NOTE 24 21

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On the cover: Nabes Shadow by Peggy Chun (1946-2008). Chun is known in Hawaii for her beautiful and often whimsical artwork. Her work can be found in both private and corporate collections across the globe. Chun captured the "spirit of aloha" in her paintings and enjoyed sharing her love of the islands with the world. To see more of Chun's work visit www.cedarstreetgalleries.com (This artwork was originally featured on the cover of the May 2010 issue) Notices and articles should be sent to Edward C. Kemper at edracers@aol.com, Cynthia M. Johiro at cynthia.m.johiro@hawaii.gov, or Carol K. Muranaka at carol.k.muranaka@gmail.com. All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community. The Hawaii Bar Journal reserves the right to edit or not publish submitted material. Statements or expressions of opinion appearing herein are those of the authors and not necessarily the views of the publisher, editorial staff, or officials of the Hawaii State Bar Association. Publication of advertising herein does not imply endorsement of any product, service, or opinion advertised. The HSBA and the publisher disclaim any liability arising from reliance upon information contained herein. This publication is designed to provide general information only, with regard to the subject matter covered. It is not a substitute for legal, accounting, or other professional services or advice. This publication is intended for educational and informational purposes only. Nothing contained in this publication is to be considered as the rendering of legal advice.

In no uncertain terms, and without question, mediation is an effective and powerful alternative dispute resolution tool, available to litigants and their respective legal counsel. It has a proven and longstanding track record of circumventing, truncating, or ending what can often be years of costly, timeconsuming, and stressful litigation. Fruitful mediation, even if only partially successful, limits opportunities for in-court jousting,

When Divorce Mediation

Undesirably Breeds

Litigation by Tom S. Tanimoto and P. Gregory Frey

thereby promoting, and hopefully, perpetuating positive relations between the party litigants, during a case, at its conclusion, and beyond. See In re marriage of Duffy and Pilny, 718 N.E.2d 286, 291 (Ill. App. 1999) (stating that “[m]ediation preserves the resources of the parties . . . and does not pit the parties against one another.”). More importantly, productive mediation preserves scarce and already farovertaxed judicial resources. The United States Supreme Court declared that “[t]he concept of mediation is the antithesis of justiciability.” General Committee of Adjustment of Brotherhood of Locomotive Engineers for Missouri-Kansas-Texas R.R. v. Missouri-Kansas-Texas R. Co. et. al., 320 U.S. 323, 337 (1943). Relatively (and figuratively) speaking, we posit that litigation is akin to an ailment, and mediation is the treatment, if not, the cure for that all too prevalent ailment.1 As discussed herein, to no surprise, courts in large part view mediation glowingly, albeit tempered at times with hints of guarded optimism, due to fact that there will always be cases that cannot be settled. Oftentimes, it is because the parties are just “too far apart.”2 There are also times when mediation is procedurally, inappropriate or premature. Sometimes, however,

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mediation not only fails to treat or cure the “ailment”, but leads to serious, albeit unintended, side effects and unfavorable results. For example, while there will always be party litigants who unwaveringly demand their day in court (as is their right), in extreme cases, they will refuse to mediate, or begrudgingly do so, in bad faith, only because they are ordered to participate, all while advancing, wholly unreasonable and untenable positions which they believe

to be “just the opposite.” The almost inevitable consequence of individuals who strictly adhere to such narrow and constrained views of the legal process and how it should work (for them) is the obliteration of any notion of alternative dispute resolution. The confluence of all the above portends an escalation of litigation,3 which is one topic of this article – and nothing could be worse than litigants unnecessarily expending extensive resources (i.e., time, energy, and money) on both mediation and litigation, literally at the same time, only to fail at the former, and be forced to contend with the latter. Such escalation may be more prone to occur in the family law arena by and between divorcing parties because they are unlike litigants in other types of civil cases where parties are more often than not, at arm’s length and unrelated, thus not nearly (if at all) as emotionally and psychologically invested. By contrast, divorce cases, by their very nature, can involve personal, handto-hand combat (so to speak), replete with bone-chilling allegations proffered by individuals driven by the most visceral of human emotions, including, but not limited to, jealousy, despondency, anger, and, often, an utter feeling of loss and despair. This article will focus on the many problems, difficulties,

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and challenges which may arise, perhaps more often than not, in divorce mediations. This reality is particularly relevant to Hawaii family law attorneys because mediation is by court rule virtually mandatory. See Haw. Fam. Ct. R. 94, discussed infra. Mediation, as a case prerequisite, creates an increased and heightened responsibility for the divorce lawyer to be fully informed in order to proactively and effectively counsel, educate, advise, and likewise, fully inform his/her client on all the many facets and nuances of mediation, aside from simply motivating them to engage and meaningfully participate in such. This discussion must include the pros and cons of mediation, (i.e., what can go right and what can go wrong) which this article will offer for the reader’s consideration. Section I of this article will introduce to the reader, the pervasive, nearly mandatory role that mediation plays in Hawaii divorce cases, as provided by Haw. Fam. Ct. R. 94. Section II (and other sections which follow) set(s) forth some of the optimistic views held, if not fully embraced, by courts to confidently make the point that mediation is a viable and historically useful resource to settle cases, and that therefore, it should, if not must, be utilized. Section III discusses Haw. Fam. Ct. R. 53.1 that sets forth factors that a court might consider, such as costs, selection of a mediator, and the procedural posture of the case before ordering a case and party litigants to mediation. Sections IV, V and VI herein present selected and problematic scenarios which may arise prior to, during and upon the conclusion of mediation. Along the way, as mentioned, we will present commentary and suggestions that may be useful to prepare a client (if not his/her counsel as well) to adopt and positively embrace all aspects of mediation (instead of stubbornly resisting or defying it) and thereby safeguard or mitigate against (mis)conduct that could lead to problems and impose obstacles in the proceeding.4 Section VII will conclude this article with some

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final thoughts and takeaways, i.e., lessons to learn. I. DIVORCE MEDIATION IN THE HAWAII FAMILY COURT Haw. Fam. Ct. R. 94(a)(1) requires any motion requesting a divorce trial setting to certify that “the movant’s declaration that a bona-fide attempt to settle the issues in said case has been made, that mediation has been attempted or is inappropriate for reasons specified in said motion, and that these efforts have been unsuccessful[.]” Id. While the rule does not per se mandate mediation, such is practically, if not absolutely the reality, especially in the First Circuit of the State of Hawaii, which is comprised of the county of Honolulu, Island of Oahu. It is fair to say that First Circuit Family Court judges will invariably decline to set a case for trial, unless and until, good faith mediation is initiated and attempted. “Back in the day,” this requirement was customarily satisfied with a “4-way” informal meeting amongst the parties and their respective counsel. Today, such an attempt is insufficient, as the parties must engage in formal mediation to its completion, by virtue of a declared impasse, or (partial) settlement. There is a statutory exception to the mediation “requirement” in the context of domestic abuse or violence, as set forth in Haw. Rev. Stat. §580-41.5(a), which provides that “[i]n contested divorce proceedings where there are allegations of spousal abuse, the court shall not require a party alleging the spousal abuse to participate in any component of any mediation program against the wishes of that party.”5 Subsection (c) reads similarly, but it applies to instances where there is an active restraining order or Order for Protection in effect.6 In light of this virtually mandatory mediation framework set forth in Haw. Fam. Ct. R. 94, all divorce clients, save those eligible for the above-discussed statutory, domestic abuse exception, should be counseled and thoroughly

educated, from and during the infancy of the case, as to the reality that good faith mediation must be attempted prior to setting a matter for trial, and failing that, the court will nonetheless, almost certainly order such, pursuant to its authority under Haw. Fam. Ct. R.53.1, discussed in more detail infra. II. A POSITIVE JUDICAL VIEW OF MEDIATION “With the heavy caseloads shouldered today by federal and State courts alike, mediation provides a vital alternative to litigation. The benefits of mediation include its cost-effectiveness, speed and adaptability. Experience has shown that even where parties believe that there is no possibility of settlement at the outset of mediation, they may change their minds during the process. Therefore, while the court cannot force litigants to settle an action, it is well established that a court can require parties to appear for a settlement conference.” Small v. New York, 12-CV-01236-WMS-JJM at 2, (W.D. N.Y. 2015). The Small court’s broad sweeping praise of mediation is rightfully the promotional centerpiece of any “career” mediator’s advertising brochure. In furtherance of mediation’s positive attributes, we submit that it also has a utility that transcends the mere generation of a settlement agreement. Custody cases (by their very nature) implicate a child’s well-being and happiness, and that, along with the child’s needs and best interest, in some cases, can easily transcend the reach and scope of a judicial decision.7 However, a mediated agreement is only limited by the creativity and sophistry of the parties, and it is wholly different from a trial decision which can then be appealed, thereby protracting the conflict.8 A court’s ruling must also be based on the evidence presented at a trial, while mediation does not. Indeed, sometimes the law is ill-equipped to do justice to a set of circumstances as there can be fact patterns where a trial decision is insufficient, if not ill-equipped, to address

the problems at hand. T.C.M. v. W.L.K., 237 So.3d 238, (Ala. Civ. App. 2017) is one such example of a very difficult and highly litigated custody/adoption proceedingix (on appeal) where Judge Thompson, in a concurring opinion, directed to the parties, what can be characterized as nothing short of a plea for diplomacy and a cease-fire to current, and what is likely to be further legal hostilities. Moving forward with this matter, promoting the best interests of the innocent child who is the subject of these proceedings dictates that the parties work together toward a solution that ensures involvement of both the father and the prospective adoptive parents in the child’s life. The child, who is now four years old, has always known the prospective adoptive parents as his parents. They have loved and nurtured him since his birth, and if he is removed from the only family he has known it will undoubtedly be a traumatic experience. At the same time, the father has been working through the legal systems of both Florida and Alabama to have his paternity declared and to obtain custody of the child since before the child’s birth. I am sure the prolonged litigation has left all parties with frayed emotions and hard feelings. Perhaps mediation and/or counseling for the parties and the child can be ordered to assist them with dealing with the final outcome. The ultimate disposition of the custody of the child has been so drawn out that the courts should do what they can to alleviate much of the trauma as possible. Id. at 245 (emphases added). It would seem that T.C.M. is a “poster child” for nearly eternal litigation and its attendant consequences, and Judge Thompson’s words implore the parties to pursue a creative, amicable, and mediated end to the case, as opposed to a conclusion that will eventually (perhaps not anytime soon) come about, following the costly and inexorable exhaustion of all available legal avenues, including countless pre-and post-trial motions,

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HAWAII BAR JOURNAL

discovery, expert testimony, lengthy hearings and trial days, and one or more further appeals to one or more higher courts.10 In such a case, mediation may be the only sensible avenue towards resolution. “[T]his is particularly true in complex cases involving multiple claims and parties. The fair and expeditious resolution of such cases often is helped along by creative solutions – solutions that simply are not available in the binary framework of traditional adversarial litigation. Mediation with the assistance of a skilled neutral facilitator gives parties opportunities to explore a much wider range of options, including those that go beyond conventional zero-sum resolutions.” In re Atlantic Pipe Corp., 394 F.3d 135,144 (1st Cir. 2002) (emphasis added). III. FACTORS A COURT SHOULD CONSIDER PRIOR TO ORDERING MEDIATION While it is critical to promote the undeniably positive aspects of mediation,11 it is important for counsel to recognize when an exemption from mediation is applicable within the discretion of the Family Court judge (unlike the more mandatory exemption provided by Haw. Rev. Stat. § 580-41.5, discussed supra at 4), and to know when to raise such matters and possibilities, prior to mediation being ordered or compelled by the Court. Notwithstanding mediation’s high regard, party litigants must have confidence in their counsel to advise them and subsequently, address and properly advance with the court, as necessary, other factors and circumstances that meritoriously militate against alternative dispute resolution options, such factors being time-sensitive matters requiring immediate court relief, the overall suitability of a matter for mediation, cost, and fairness of the mediator and mediation process itself. See In re marriage of Duffy and Pilny, 718 N.E.2d 286, 291 (Ill. App. 1999) (stating that “[a]lthough mandatory mediation may be inappropriate when, for example, there is a history of abuse or the parties

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have demonstrated an inability to cooperate, the same factors would likely preclude an award of joint custody in the first place. Moreover, in this case, the trial court recognized that mandatory mediation is not appropriate for all disputes and exempted financial matters and emergencies from its order.”). Haw. Fam. Ct. R. 53.1(a) and (b) 12 set forth several comparatively similar factors, namely: (1) will mediation be helpful, or to frame it a bit differently, useful, (2) current case status, which we submit, suggests that there may be instances where and when mediation is premature or inappropriate, (3) are the parties willing to mediate (and, of course, will they do so in good faith), (4) are there economic considerations for or against mediation, and (5) selection of a mediator? The specific factors enumerated above will be discussed in greater depth below. WILL MEDIATION BE USEFUL? If both parties are adamantly dismissive of the mediation process and refuse to mediate and/or disagree on just about every issue put forth,13 mediation will likely fail, thereby wasting everyone’s time and money, which is an important consideration for the court. See In re Marriage of Aleshire, 652, N.E.2d 383, 386 (Ill. App. 1995) (stating that a “trial court may order mediation only after assessing whether mediation would be useful”). “The trial court is in the best position to observe the parties and its determination that mediation will be useful to resolve future dispute should be given great weight.” In re marriage of Duffy and Pilny, 718 N.E.2d at 291. With respect to the divorce matter of In re the Marriage of Adam Blum and Lauren Herbstman, H046416, November 27, 2019 (Cal. App. 2019), Wife claimed that the court should have set contested matters for mediation, however, “[g]iven the parties’ acrimonious and litigious history and their failure to avail themselves of the existing resources for dispute resolution, it seems highly unlikely that the parties would

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have reached a mediated agreement if the court had ordered mediation.” Id. at 48-9. Likewise, in Doe v. Doe, 118 Haw. 268, 275 (App. 2008), the trial court denied Mother’s request for mediation, along with other matters, and then proceeded to issue a finding that “[b]ased on the history of this case, mediation is not likely to be successful and therefore the parties shall not be required to attempt mediation.” Id. The court’s corresponding conclusion of law provided in pertinent part that “[t]he Court concludes that it isn’t necessary or appropriate for the parties to participate in . . . mediation. . . .” Id. at 276. CURRENT STATUS OF THE CASE For some cases, mediation would be premature or inappropriate, if their circumstances dictated that time is of the essence, and immediate relief is necessary. This is due to the fact that the mediation process may not generate results as swiftly as a contested hearing or trial, followed by a timely, if not immediate, court ruling – assuming, of course, that such alacrity is possible, given the ubiquity of congested, court calendars. Notwithstanding pervasive judicial praise of mediation, the process requires time and patience; hence, to the dismay of impatient parties, a point that counsel must impart to such clients. In Yindra v. Yindra, 506 N.W.2d 427 (Wis. App. 1993) – a child custody case – “[t]he trial court denied mediation, finding that mediation would impose an undue hardship on [mother], who had travelled from Florida for the motion hearing, and on the children, who were on the verge of starting school and would be subject to dislocation during the school year if disposition of [mother’s] motion was delayed. The trial court noted the parties’ repeated disputes and found that mediation was unlikely to succeed ‘because these people haven’t agreed on anything.’” Id. at 1 of unpublished slip opinion. The Yindra court ultimately proclaimed that “[b]ecause the trial court

may excuse compliance with the mediation requirement, we review the trial court’s decision for a misuse of discretion. We conclude that the trial court reached a reasoned and reasonable decision in refusing to require mediation, and we discern no misuse of discretion.” Id. at 2. Other time-sensitive circumstances would include, but not be limited to, situations where an immediate issuance of orders was necessary to ensure child/party safety, or to circumvent a party’s misappropriation, concealment, or disposal of marital funds, especially real property. While party litigants often (and unrealistically) expect, if not demand, at any stage of the proceeding, immediate judicial attention to each and every disputed case issue, only certain critical matters should be given consideration for a mediation exemption. WILLINGNESS OF THE PARTIES TO MEDIATE As we briefly touched on in the opening paragraphs of this article, there will be several scenarios where and when mediation will undoubtedly appear be futile. Some party litigants will unequivocally want their day in court and avoid mediation together. Others may be so angry that they want to litigate just to prove a point or to embarrass the opposition. “[F]orced mediation is not by its nature conducive to effective mediation.” In re Public Service Co. of New Hampshire, 99 B.R. 177, 181 (Bankr. N.H. 1989). Party litigants’ willingness to mediate may also be based not so much upon the likelihood of success – especially if their case is highly contested – but more on simple economics. In other words, as discussed and analyzed below, given the potential high cost of mediation, is it a sound and wise investment when there is only so much money available to get the case resolved, one way or the other? However, “[i]n some cases, a court may be warranted in believing that compulsory mediation could yield significant benefits even if one or more parties

Solutions Start Here object. After all, a party may resist mediation simply out of unfamiliarity with the process or out of fear that a willingness to submit would be perceived as a lack of confidence in her legal position. In such an instance, the party’s initial reservations are likely to evaporate as the mediation progresses, and negotiations could well produce a beneficial outcome, at reduced cost and greater speed, than would a trial. While the possibility that the parties will fail to reach agreement remains ever With the equipment in present, the boon of settlement can be worth p the risk.” In re Atlantic Pipe Corp., 394 F.3d Cir. 2002) citation 135,144 (1st They could(internal easily and safely pomitted). In our Family Courts, judges would support and advance the thought process of the Atlantic Pipe Corp. court; so muchTso that it is very unlikely that a case will move much further in the court sysnumber ofreturn court tem from the initialThe Motion to Set rhearing, until mediation is completed, regardless of a party’s willingness to do so. Mediation has the best chance to succeed when party litigants give it a serious chance to succeed, as opposed to simply “doing it for the sake of doing it” (to Because the annual “jump through the [mandatory] hoop(s),” f if you will), and since it is mandatory, clients should (and might as well) put forth their best efforts and give the process a fighting chance.

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THE COST OF MEDIATION Court-ordered mediation may require one or both parties, in varying percentages of allocation, to retain a neutral mediator, who is usually an attorney or retired judge. There are resources available in the State of Hawaii for low(er) cost or volunteer mediators as well. In light of such options, it is very difficult to claim that the cost of a mediator is costprohibitive to the extent necessary and required to warrant an exemption. However, if the court should order a case with T a nominal or modest marital estate to private mediation (i.e., with a private mediator who oft-times charges an hourly rate equal to or maybe even more than the involved lawyers), that could be cost

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11 7

prohibitive, and lead to either or both parties becoming disgruntled.14 Such frustration lies with the reality that party litigants are not only paying for their attorneys to litigate their divorce action but also for the inclusion of a third party (again, often an attorney or retired judge, whose skill and experience commands commensurate compensation) to facilitate an additional process (i.e., mediation) that they might deem unwelcome in the first place, but for being court-ordered – if not literally, forced – into the process. This means that a typical Family Court-ordered mediation requires the parties to pay hourly attorney’s fees to “3 of the 5 people in the room.”15 This scenario becomes all the more nerve-wracking when the parties themselves adopt a position that these monies could have been devoted to simply getting the case to trial and to a trial decision. However, the understandable fear, stress, and estimated costs of trial, may so adversely affect the parties (and dissuade them from litigating) that a settlement is ultimately reached short of trial. This is not to say that consideration of mediation’s cost is not of significant import. “[W]hen mediation is forced upon unwilling litigants, it stands to reason that the likelihood of settlement is diminished. Requiring parties to invest substantial amounts of time and money in mediation under such circumstances which may well be inefficient.” In re Atlantic Pipe Corp., 394 F.3d 135,144 (1st Cir. 2002). “The fact remains, however, that none of these considerations establishes that mandatory mediation is always inappropriate. There may well be specific cases in which such a protocol is likely to conserve judicial resources without significantly burdening the objectors’ rights to a full, fair and speedy trial. Much depends on the idiosyncrasies of the particular

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case and the details of the mediation order.” Id. (emphasis added). It requires the courts here to consider each case individually; not to simply “blanket-order” mediation in every case, no matter how highly lauded, the process is. Yet, it certainly is the obligation of counsel to re-

mind the court that as far as mediation goes (and whether it should be ordered), “one size doesn’t fit all.” and to kindly nudge such clients in an appropriate direction, and to constantly remind them to remain flexible and optimistic. The practitioner needs to be able to convince his/her client that mediation is a better route, and that the chances are fair to good, if not better, that the case will settle in whole or in part as a direct consequence of the process (thereby conserving precious funds in the long run). At the very least, counsel must convince the parties to accept the notion that continuing discussions as part of the mediation process may very well facilitate a settlement, or perhaps, substantially narrow the disputed issues such that a later judicial settlement conference devoted to address the remaining contested issues may fully resolve the dispute. The mantra, “keep an open mind,” must be at the forefront constantly, if not always. IMPARTIALITY OF THE MEDIATOR In addition to the prior factors enumerated supra, clients must also truly believe that the mediation process and their selected mediator is fair, competent and fully neutral. Otherwise, they will have no faith and trust in the process, and

thereby, dismiss it as a pure waste of time. Haw. Fam. Ct. R. 53.1(c) and (d) provide guidance pertaining to the selection of a mediator.16 Ceats, Inc. v. Cont’l Airlines, Inc., 755 F.3d 1356 (Fed. Cir. 2014) discusses the qualification and attributes necessary to a mediator. “Although . . . mediators perform different functions than judges and arbitrators, mediators still serve a vital role in our litigation process. Courts depend heavily on the availability of the mediation process to help resolve disputes. Courts must feel confident that they are referring parties to a fair and effective process when they refer parties to mediation. And parties must be confident in the mediation process if they are to be willing to participate openly in it. Because parties arguably have a more intimate relationship with mediators than with judges, it is critical that potential mediators not project any reasonable hint of bias or partiality.” Id. at 1362. “While mediators do not have the power to issue judgments or awards, because parties are encouraged to share confidential information with mediators, those parties must have absolute trust that their confidential disclosures will be preserved.” See In re Grand Jury Subpoena Dated Dec. 17, 1996, 148 F.3d 487, 492 (5th Cir.1998). “Indeed, mediation is not effective unless parties are completely honest with the mediator.” Id. IV. WHEN ENCOURAGEMENT FAILS TO SPUR FRUITFUL MEDIATION After the process is appropriately vetted, an appropriately informed litigant may still not want to mediate, despite its track record of producing positive results. This hesitancy, bordering on outright refusal, often exists even after a court orders the case into mediation. Such reluctant parties should be informed that they have very limited options to oppose a court’s

determination to compel mediation, absent a critically urgent or time-sensitive issue that warrants immediate court action. This leads us to a necessary discussion as to whether an order compelling mediation can be contested, or appealed. The short answer is almost always, no. Clients should therefore be firmly counseled on the near-abject futility of appealing an order compelling mediation. Some have tried, and most, if not all, have been unsuccessful. The reality and the law seem clear, and party litigants need to be properly informed. Mediation is going to happen. So, make the best of it, and once again, “keep an open mind.” Otherwise, the case might not get set for trial anytime soon, and certainly so, if the parties embark on litigation to contest a mediation order. APPEALING AN ORDER COMPELLING MEDIATION “Pursuant to Haw. Rev. Stat. § 6411(a) (1993), appeals are allowed in civil matters from all final judgments, orders, or decrees of circuit and district courts. In district court cases, a judgment includes any order from which an appeal lies. . . . A final order means an order ending the proceeding, leaving nothing further to be accomplished. . . . When a written judgment, order, or decree ends the litigation by fully deciding all rights and liabilities of all parties, leaving nothing further to be adjudicated, the judgment, order, or decree is final, and only then appealable.” Casumpang v. ILWU, Local 141, 91 Haw. 425, 426, (1999) (citations, internal quotation marks, and footnote omitted; emphases added). “Appellate courts, upon determining that they lack jurisdiction shall not require anything other than a dismissal of the appeal or action.” Housing Fin. and Dev. Corp. v. Castle, 79 Hawaii 64, 76, 898 P.2d 576, 588 (1995) (citation, internal quotation marks, and ellipsis points omitted). However, this does not end the analysis. A party could theoretically

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request that any non-final order be certified for interlocutory appeal, see, e.g., Haw. R. Civ. P. 54(b)17 stating that a final judgment may be issued as to less than all outstanding claims, so long as there is “. . . an express determination that there is no just reason for delay. . . .” Id. Such a request seems futile, however, in the case of orders compelling mediation. In Short Bros. Cons. v. Korte & Luitjohan, 828 N.E.2d 734, 756, (Ill. Ap. 2003), the court pronounced that “the mediation order entered in the case at bar falls into [a] category of administrative, noninjunctive orders, which are not appealable under [the applicable Illinois court rule, namely] Supreme Court rule 307(a)(1). It seems self-evident that the purpose of the mediation process, and the mediation order in the case at bar, is to streamline the judicial process by encouraging compromise and settlement, if not of the entire controversy then at least some portions of it, thereby reducing the workload of the circuit court and lessening the expense and burden to the parties. The mediation order is clearly related to the circuit court’s inherent authority to control its own docket. The mediation order is ministerial or administrative in nature, rather than injunctive in nature because it is regulating the procedural details of the litigation, rather than affecting the rights of the parties. The mediation order relates only to the conduct of the litigation; it does not affect the relationship of the parties in their everyday activity apart from the litigation.” Id. (internal citations omitted). The Short Bros. Cons. analysis easily applies to appeals from an order compelling mediation in the State of Hawaii, and chances are slim to none – very likely the latter – that such an appeal will be heard, much less successful on the merits. The analysis in In re Thomas G. Hinners, Debtor. Case no. 12-80924, (S.D. of Fla. September 13, 2012) is similar. Therein, a party sought leave to file an interlocutory appeal, with respect to an

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Order Denying Motion to Quash Order Compelling Mediation Based Upon Newly Discovered Evidence of Debtor’s Asset Concealment. Id. at 1. While the very title of the subject order suggests that one party declined to mediate because the bankruptcy debtor was hiding assets and such mediation would be a “waste of resources and ‘will be an epic failure,’” id., the court noted that the movant cannot “show that immediate resolution of this issue would advance the termination of this litigation. In fact, [movant] is responsible for delaying this litigation by refusing to participate in the mediation and by filing multiple interlocutory appeals. Indeed, even assuming arguendo that [respondent] is operating in bad faith, the best approach to advance this case is to attend mediation and, if it fails, resume the proceedings in the bankruptcy court.” Id. Our courts appear to view the mediation process in much the same way. A party who does not want to mediate simply because of its costs and/or the party’s belief (genuine or not) that the process will not produce favorable results may be, rightfully viewed by our Family Courts as uncooperative, if not unreasonable, when balanced against the ever enduring pursuit of maximizing judicial resources and promoting the expeditious resolution of cases, all with the interests of the parties in mind. V. ISSUES UPON THE COMMENCEMENT OF MEDIATION Once all of the potential pre-mediation hurdles have been cleared, there are problems that can still arise during mediation. Often recurring is the issue of not mediating in good faith.18 A settlement is certainly not required, nor is it necessary that every single potential avenue of settlement be exhausted. One may even be able to give up on the process a little early, which likely would not be considered bad faith, but certain conduct may have adverse effects on the merits of the case, and could give rise to negative/adverse

inferences.19 However, if a party fails to appear altogether or engages in patently dilatory conduct, which we will explore below, that deliberate and intentional conduct (or lack thereof) would almost certainly be deemed to be bad faith. BAD FAITH MEDIATION In Cassidy v. Cassidy, Docket No. A1492-14T1 (N.J. Super. App. Div. 2016) at 3-4, “[m]ediation did not occur because plaintiff failed to submit his financial documents and case information statement as required by the Court.” Instead, plaintiff proceeded to advance matters that were less germane. “[Ultimately], the court noted that plaintiff ’s failure to participate in the ordered mediation was in bad faith. . . .” Id. at 4. Similarly, in Foxgate v. Bramalea California, Inc., 92 Cal.Rptr.2d 916, 925 (Cal. App. 2000), one party failed to abide by the court’s mediation order requiring each party’s respective experts to appear at mediation. Instead of objecting to the mediation order at its inception, and upon the mediator’s direction in accordance thereto, one party simply did not comply with said order’s mandates, while the other party, Foxgate, produced experts at substantial cost. Id. Said non-compliance occurred without notice to the mediator or the opposing party. Id. “This tactic, in contradiction of the mediation order and the mediator’s directive, caused the scheduled mediation sessions to collapse. As a result, Foxgate, which had readied and produced nine experts for the sessions, incurred substantial expert witness fees. Appellants thus undermined the mediation process before it ever began.” Id. at 925-26. See Sand Storage, LLC v. Trican Well Serv., L.P., Civ. Action 2:13-CV-303, at 4 (S.D. Tex. 2015) (walking out of mediation because counsel was not happy with opposing party’s choice of corporate representative bordered on frivolous); Roberts v. Rose, 37 S.W.3d 31, 33-35 (Tex. App 2000) (noting that sanctioning an attorney for not appearing at a court

ordered mediation was appropriate). In re K.A.R., 171 S.W.3d 705, (Tex. 2005) is a case where two parties “unilaterally canceled and failed to attend a court-ordered mediation without adequate notice. By doing so, they violated a court order . . . in which the trial court expressly directed the parties and their counsel to ‘appear and attend’ the mediation. Included within a trial court’s core functions is the management of its docket and the issuance and enforcement of its orders. Indeed, it is the office of the court to issue orders and—when and if the court deems it appropriate—to vacate, rescind, or modify its orders. Lawyers and litigants do not have the authority to issue orders, nor do they have the authority to vacate, rescind, or modify court orders. When Clarke [i.e., one of the parties implicated in the court’s pronouncement] chose to cancel the court-ordered mediation, she effectively usurped the court’s role and displaced the court as decision maker. By taking it upon herself to countermand that which the court had ordered, Clarke interfered with a core function of the court. In addition to this act of interference, Clarke failed to obey the court’s command to appear for mediation. The failure to comply with a trial court’s order to participate in mediation constitutes significant interference with the court’s core functions and therefore, can support an award of sanctions imposed under the court’s inherent power to sanction.” Id. at 715 (internal citations and footnote, omitted). It is important to distinguish bad faith mediation versus and contrasted with the failure to settle, despite reasonable effort(s), which is something that often occurs. Under certain conditions, a party litigant’s insistence on his/her day in court cannot per se be characterized as bad faith.20 In Triplett v. Farmers Ins. Exchange (1994) 29 Cal.Rptr.2d 741, such a litigant was not found to have “impeded the progress of the litigation, or that it refused to participate in pretrial discovery,

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or that it failed to appear at any court-ordered conferences, or that it took any tactic or action other than to conduct a vigorous defense of the action and require [plaintiff] to prove her case.” Id. at 746 (emphasis added). However, going too far can risk sanctions and only lead to delays. Clients should be advised of this. VI. WARNING SIGNS UPON A(N) (APPARENTLY) SUCCESSFUL CONCLUSION TO MEDIATION Despite best efforts during mediation, upon finally attaining what is perceived and genuinely believed to be a settlement on all or some of the issues, it is not unheard of for “buyer’s remorse” to sink in. A litigant may subsequently refuse to acknowledge the existence of an agreement (even though he/she earlier entered into such). Often at mediation, a deal is memorialized either by a “gentlepersons’ agreement” or in a written agreement, sometimes even in the form of

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a fully executed divorce decree. Despite such formality, participants in the mediation often “get cold feet” post agreement/settlement. The divorce matter of Bandy v. Bandy, No. 2006-CA-001546-MR (Ky. Ct. App. 2008), presents a thorough analysis of various principles highly relevant to the mediation scenario whereby one party “wants out” of a mediated agreement. In Bandy, wife moved to set aside the settlement agreement arrived at in mediation due to lack of capacity and unconscionability. Id. at 1. The trial court denied wife’s motion and the appellate court affirmed. Id. Wife claimed that because the mediation was held over eight hours, “she felt the session went on ‘forever’ and she was ‘scared’ and ‘could not focus.’” Id. at 3. The hearing as to both matters was fairly extensive (and undoubtedly costly) including the testimonies of forensic psychologists, id. at 3, on behalf of both parties, as well as a former Internal

Revenue Service accountant on behalf of wife. Id. at 4. However, the family court found that “[m]ental weakness alone does not justify the annulment of a contract or deed if it is not such an infirmity as to destroy the party’s power to act voluntarily and to appraise the consequences of his act; court will hesitate to upset a transaction which is entered into in good faith and where no undue advantage or fraud is shown; and the true test is the person’s capacity to understand and assent to the particular transaction in question.” Id. (internal citations omitted). As for unconscionability, wife’s expert testified that based on a review of provided records, wife would leave the marriage with 41 percent of the marital assets, despite having entered the marriage with slightly more than half. Id. at 4-5. The appellate court stated that “[t]he family court assessed the settlement agreement and the circumstances surrounding its negotiation as well as the economic circumstances of

the parties and did not find the agreement to be manifestly unfair or inequitable.” Id. at 5-6. In re Haggerty, 380 P.3d 1176 (Or. App. 2016), featured a mediated divorce agreement which was not sustained by the lower court, but on appeal, the trial court’s decision was set aside for further proceedings. Id. at 1178. Wife, who sought voidance of the alleged agreement, asserted that she was pressured by the mediator into accepting the agreement, despite claiming that it was not a good deal. Wife stated that the mediator “made me feel trapped so I verbally agreed, but knew it was not right. I was not going to and did not sign anything!” Id., 1181 (italics and quotation marks in original). Haggerty generated two appeals concerning the validity of the alleged mediated agreement and associated remands. These proceedings are likewise extensive as in Bandy, and limited in scope to only the validity of a mediated agreement, to

say nothing of property division issues. The court in In re Marriage of Beetley, B206677 (Cal. App. 2009) declined to set aside a mediated agreement, even though it contained a provision where wife would make best efforts to have a criminal charge against husband dropped and not testify against him. “They necessarily involve the questions whether wife did engage in the mediation process and what she was asked and told with respect to its parameters and effects, and whether she told anyone what her expectations were and explained to anyone about her asserted inability to engage in, or continue engaging in, the mediation and enter into the settlement agreement. We will not presume that she remained mute during the entire ten hours and did not indicate her surprise at/objection to mediation matters of which she now complains.” Id. at 7 (page numbering of the slip opinion). A dissenting judge, (albeit in an unpublished decision) in Pohlman v. Pohlman,

No. 344121, January 30, 2020 (Mich. App. 2020), offered her view of the matter, in light of the majority’s decision to overrule wife’s appeal of the lower court’s declination to set aside an agreement reached during mediation, in light of wife’s claim that the mediator failed to undertake a statutorily mandated inquiry as to whether the parties’ relationship was coercive or violent.21 According to uncontested evidence presented to the trial court by wife, Jody Pohlman, they did [have such a relationship]. Wife insists that she signed the agreement presented to her by the mediator because she felt coerced and overwhelmed due to the conduct of the mediator and her own counsel, and duress applied by her now ex-husband before the mediation began.” Id. at 2. “The circumstances surrounding mediation as described by [both parties] reflect that the process was coercive and violent. Forcing someone to stay in a room until she signs a document is a form

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of abuse.” Id. at 6. Ultimately, it is important to always remember that “[a]lthough mediation may yield an agreement, the goal is a voluntary agreement. Intimidation, coercion and duress must play no part.” Id. at 2.22 In light of this case, it becomes none too obvious that where there is any notion of domestic violence, be it confirmed, alleged or even refuted, is the situation that arises too infirm of a field to allow mediation? Haw. Rev. Stat. §580-41.5 does not affirmatively preclude from exemption the situation where a court has declined to find the existence of abuse; it speaks of allegations. Since mediation by its nature is confidential, it may be vital to create a record in court that a party is willing to proceed under that basis. One way to conduct mediation is to do so separately, and never in a situation where both parties are in the same room or perhaps, not even in the next room. Counsel representing the alleged abuser also plays a role in having his/her client not communicate with the

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opposing party in any way, prior to, and certainly not during mediation, and not in the same room. Regardless, whenever any agreement is arrived at by way of mediation, it behooves counsel to go through said agreement with their client, line by line, and confirm his/her voluntary and knowing assent thereto. If a client evinces hesitancy thereto, there’s a certain wisdom to rejecting a deal, especially if an agreement will only lead to rescission efforts. Such hesitancy can manifest itself by way of nervousness or dissatisfaction with the terms of an agreement. Furthermore, any situation where a client expresses concern out of being pressured into an agreement is a warning sign that warrants at the very least, empathy and tact, if not, rejection of the proposal at hand.23 CONCLUSION As presented herein, courts generally favor and support the mediation process as an effective settlement tool and options, especially in family law cases. Some courts, as is the circumstance and reality here in the First Circuit, mandate mediation. Quite frankly, party litigants almost always have to accept this reality whether they themselves ever want to move forward with their cases. A contested case, almost always, has to first enter the mediation process, if it is to later move forward to trial. As universally favored as mediation appears to be, however, not all cases are suitable for the process, and more particularly, not all parties are able to effectively navigate the mediation process in good faith. Practitioners must carefully analyze whether mediation is appropriate in his/her case and for his/her client, and to properly

advise them of the best approach to comport with an optimistic, cost-benefit analysis. Despite most judges’ assumption that mediation is appropriate, and that mediation works, practitioners must be prepared to object when circumstances and merits of the case warrant. Failure to do so may lead to grave consequences – should some of the extreme examples set forth herein arise – least of which is the unnecessary expenditure of huge sums of money better saved for the contested trial court to hear the merits of the action. It must be stated that, by virtue of the constitutionally mandated right to due process, every party litigant is entitled to his/her day in court when appropriate, and it is up to the practitioner to properly remind the family court of this fundamental right, the availability of mediation notwithstanding. ____________________ 1

As will be discussed infra, it would be far too ambitious, unfortunately, to liken mediation to a panacea.

2 “Too far apart” refers to the concept where and when there is an impasse to a mutual resolution due to an insurmountable gap between the parties’ respective settlement positions, where each party believes that his/her position is “more than fair” and should be immediately accepted by the other party. 3

By escalation, we refer to instances of litigation that occur more often than if the parties had simply proceeded directly to trial in the normal course. This article presents many instances where the escalation in litigation arises out of, or is related to, the mediation process itself, and not to an actual trial on the claims and defenses of the case in dispute. 4

These sections are intended to procedurally track the concept of mediation in a traditional divorce case, from initiation, selection of a mediator and the appropriateness of the mediation process per se and its conclusion which may result in a partial or complete settlement. 5

Subsections (b) and (d), as set forth below, afford the court some flexibility to order mediation so long as safeguards are implemented, however, such is experientially, the exception rather than the rule. (b) A mediator who receives a referral or order

from a court to conduct mediation shall screen for the occurrence of family violence between the parties. A mediator shall not engage in mediation when it appears to the mediator or when either party asserts that family violence has occurred unless: (1) Mediation is authorized by the victim of the alleged family violence; (2) Mediation is provided in a specialized manner that protects the safety of the victim by a mediator who is trained in family violence; and (3) The victim is permitted to have in attendance at mediation, a supporting person of the victim’s choice including but not limited to an attorney or advocate. If the victim chooses to exercise such option, any other party to the mediation will be permitted to have in attendance at mediation, a supporting person of the party’s choice including but not limited to an attorney or advocate. (d) In a proceeding concerning the custody or visitation of a child, if there is an allegation of family violence and a protective order is not in effect, the court may order mediation or refer either party to mediation only if: (1) Mediation is authorized by the victim of the alleged family violence; (2) Mediation is provided in a specialized manner that protects the safety of the victim by a mediator who is trained in family violence; and (3) The victim is permitted to have in attendance at mediation, a supporting person of the victim’s choice including but not limited to an attorney or advocate. If the victim chooses to exercise such option, any other party to the mediation will be permitted to have in attendance at mediation, a supporting person of the party’s choice including but not limited to an attorney or advocate. 6

“In a proceeding concerning the custody or visitation of a child, if a protective order is in effect, the court shall not require a party alleging family violence to participate in any component of any mediation program against the wishes of that party.” Id.

Judges are effectively strangers to the action and while they do their utmost to follow the law, sometimes the law does not provide for a creative result that mediation is capable of fostering. Mediation allows the participants to handcraft specialized provisions and settlement terms (i.e., “out-of-the-box” thinking) which directly address a specific case’s particular circumstances and situation. This flexibility can be a vast improvement over the orders forced upon the parties (and

(Continued on page 30)

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2023 LICENSE REGISTRATION AND RENEWAL It’s Not Too Early to Plan Contemplating a Career Change? Licenses must be renewed annually to remain in good standing (RSCH 17). If you are contemplating retirement from the practice of law or thinking of changing your status, contact the HSBA for options, requirements, and recommendations before the 2023 license registration period begins on December 1, 2022. Contact Liberty Castillo at lcastillo@hsba.org or Sean Perez at sperez@hsba.org. Change of Status Change of license status requests effective for the 2022 license year must be received by December 16, 2022 to ensure appropriate processing of dues and payment amounts. Note: 2022 CLE requirements must be completed prior to renewing your license for 2023. For 2022 status changes, contact the HSBA at (808) 537-1868 or via email ars@hsba.org. Change of status requests using the 2023 online renewal form will be effective January 1, 2023. CLE Reminder The HSBA recommends that you complete your annual CLE requirement BEFORE renewing your license for accurate certification of information provided and to avoid an automatic compliance audit (RSCH 22). Contact the CLE Department at cle@hsba.org for seminar/webinar information. 2023 License Renewal Reminder 2023 License Renewals ( online and mail-in) must be received by December 31, 2022 for timely processing. Postmarked renewals received by the HSBA after December 31, 2022 will be considered late. The license renewal portal will OPEN on December 1, 2022. The renewal announcement will be posted on www.hsba.org. Renewal and other important announcements will be transmitted to your preferred communication address on file via email.

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H SBA HAP PE NIN GS HSBA Board Action The HSBA Board took the following actions at its meeting in August: • Adopted the recommendation of the joint Executive-Finance Committee to approve the proposed 2023 budget for the Goal Group’s civic education and community service projects and events. • Approved the recommendation of the Awards Committee and noted the HSBA President’s selection to honor the following recipients with HSBA Awards at the Annual Meeting being held in conjunction with virtual Bar Convention on October 14, 2022: Charles F. Fell - C. Frederick Schutte Award (for outstanding and meritorious service to the legal community and the profession); Chief Judge Richard T. Bissen (Retired) Golden Gavel Award (for outstanding service to the state or federal judiciary); Karen Char - Greeley Key Award for Innovation (for out-of-the-box legal work that involves promoting new and creative uses of, or approaches to, the law as a positive force in our community or world); and Judge Joseph E. Cardoza (Retired) - HSBA President’s Award (for extraordinary contributions and lifetime achievement that best exemplify the mission statement of the HSBA). • Approved the recommendation of the Working Group to give active HSBA members in Hawaii a hard copy and an electronic version of the Hawaii Bar Journal beginning January 2023.

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COURT B RIEF S 2022 Jurist of the Year Honored

Judge Castagnetti was appointed by Chief Justice Ronald Moon as a Per Diem District Court Judge in the First Circuit in 2007. She was appointed by Governor Linda Lingle to the Circuit Court in 2010 and currently presides over the civil calendar.

Judicial Appointments

First Circuit Civil Administrative Judge Jeannette H. Castagnetti was presented with the 2022 Jurist of the Year Award by Chief Justice Mark E. Recktenwald on September 23, at the Hawaii State Judiciary’s annual Statewide Incentive Awards Ceremony. “Judge Castagnetti has been instrumental in helping to guide the judiciary through the pandemic, and in making our civil courts more accessible and efficient. Most notably, she served as the chair of the Committee on the Implementation of Rules Promulgated for Civil Justice Improvements,” said Chief Justice Recktenwald. “Through her leadership, the committee reviewed the newly promulgated amendments to the Rules of the Circuit Courts of the State of Hawai’i and the Hawai’i Rules of Civil Procedure and ensured a smooth transition for when the rules went into effect on January 1, 2022. She went over and beyond including helping to create new statewide forms and educating lawyers and legal staff about the rule updates. She is an incredible jurist and leader, and it is with profound gratitude that we honor her with this well-deserved award.” The Jurist of the Year is selected annually by the Chief Justice from nominations submitted by Hawaii attorneys and Judiciary personnel. The award recognizes a full-time trial judge who exhibits exceptional judicial competence, evidenced by decisional quality; significant extra-judicial contributions to the administration of justice; and active participation in public service to the community at large.

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Bode A. Uale: Reappointed per diem judge of the District Court of the First Circuit and designated to act as District Family Judge. Term: August 24, 2022 to October 28, 2024. Mahilani E.K. Hiatt: Appointed per diem judge of the District Court of the Third Circuit and designated to act as District Family Judge. Term: August 31, 2022 to August 30, 2023. Robert J. Brown: Appointed per diem judge of the District Court of the First Circuit and designated to preside as District Family Judge. Term: September 1, 2022 to August 31, 2024. Harlan Y. Kimura: Reappointed as per diem judge of the District Court of the First Circuit. Term: September 4, 2022 to September 3, 2024. Michelle L. Drewyer: Reappointed per diem judge of the District Court of the Second Circuit and designated to act as District Family Judge. Term: September 6, 2022 to September 5, 2026.

Seeking Applicants for First Circuit Independent Grand Jury Counsel The Circuit Court of the First Circuit is seeking applicants for Independent Grand Jury Counsel. The compensation shall be as provided by law. In accordance with Hawaii Revised Statutes (§612-51 to §612-57), the chief justice of the state supreme court appoints grand jury counsel for the four judicial circuits of the state, selecting from among those individuals licensed to practice law in Hawaii who are not public employees. To be considered for a one-year appointment, please submit a letter indicating your interest and a resume by Friday, December 2, 2022 to: Judge Christine E. Kuriyama, 777 Punchbowl Street, Honolulu, Hawaii 96813.

CAS E NOTES Supreme Court Criminal State v. Obrero, No. SCAP-210000576, September 8, 2022, (Eddins, J. with Nakayama, J. concurring separately and dissenting; with whom McKenna, J. joins as to Sections II and III; and Recktenwald, C.J., dissenting, with whom Nakayama, J. joins). This case was about what limits, if any, Hawaii Revised Statutes § 801-1 (2014) imposes on the State’s ability to prosecute felonies. The law says: No person shall be subject to be tried and sentenced to be punished in any court, for an alleged offense, unless upon indictment or information, except for offenses within the jurisdiction of a district court or in summary proceedings for contempt. Defendant-Appellant Richard Obrero (Obrero) argued the State violated Haw. Rev. Stat. § 801-1 by using the complaint and preliminary hearing process to prosecute him for second-degree murder, attempted murder in the first and second degree, and use of firearm in the commission of a separate felony. The Hawaii Supreme Court agreed. Obrero wasn’t charged with contempt. And the felonies he was charged with are neither within the jurisdiction of the district court nor chargeable by information, see Haw. Rev. Stat. §§ 806-82 (2014), 806-83 (Supp. 2021). So Obrero was a person who shall not “be subject to be tried and sentenced . . . in any court, for an alleged offense, unless upon indictment.” Haw. Rev. Stat. § 801-1. The Hawaii Supreme Court held that Haw. Rev. Stat. § 801-1 meant what it plainly says: criminal defendants cannot be “subject to be tried and sentenced to be punished in any court, for an alleged offense” without an indictment or information unless the charged offense is either contempt or within the jurisdiction of the district court. The Hawaii

Appeal Pointer Transcripts that are requested for purposes of appeal and are completed after the record has been transmitted to the appellate clerk, and findings of fact and conclusions of law entered after the record on appeal has been transmitted to the appellate clerk, shall be transmitted by the clerk of the court as a supplemental record without further order of the appellate court. HRAP 11(b)(1). Nevertheless, if the transcripts or findings of fact and conclusions of law are not transmitted, the parties may need to file a motion to supplement the record in order to remind the clerk. Supreme Court also held that defendants were “subject to be tried and sentenced to be punished” at arraignment, when they must either plead guilty, and be subject to sentencing, or plead not guilty and be subject to trial and possibly also sentencing. Nakayama, J., concurred and dissented in which McKenna, J., joined as to Sections II and III. Nakayama, J. concurred in the result of the Majority’s opinion because the State’s complaint against Obrero was unconstitutional. In 1982, the Legislature and Hawaii voters amended article I, section 10 of the Hawaii Constitution to authorize prosecutors to initiate a prosecution upon a judge’s finding of probable cause after a preliminary hearing. In this case, the State seized upon this authority to initiate a prosecution via a preliminary hearing even after a grand jury declined to return a true bill. This violated the purpose of the 1982 amendment, which was to create an alternative — not sequential — method by which the State could initiate a prosecution. Recktenwald, C.J., dissented, in which Nakayama, J., joined. Rectenwald,

C.J. stated that in 1982, the citizens of the State of Hawaii voted to ratify an amendment to the Hawaii Constitution to allow prosecutors to charge felonies by preliminary hearing. Its purpose and effect, until today, were never disputed: it granted prosecutors discretion to initiate criminal proceedings by either a grand jury indictment or upon a finding of probable cause by a judge at a preliminary hearing. The Majority’s novel interpretation of the constitution departs from forty years of settled law and needlessly frustrates the framers’ intent. This case required the Hawaii Supreme Court to consider whether the 1982 amendment of article I, section 10 invalidated Haw. Rev. Stat. § 801-1 (2014), unchanged in its current form at least since 1905. Whereas article I, section 10, as amended, allows a defendant to be charged by preliminary hearing, Haw. Rev. Stat. § 801-1, when read in conjunction with other statutes, requires the State to procure a grand jury indictment in order to prosecute defendants accused of certain felonies. The text and purpose of the 1982 amendment make clear that it was designed to abrogate the grand jury requirement previously recognized in article I, section 10 and Haw. Rev. Stat. § 801-1. Because effect cannot reasonably be given to both Haw. Rev. Stat. § 801-1 and article I, section 10 of the constitution, the statute must fail. Warner v. State, No. SCWC-190000034, September 20, 2022, (McKenna, J.). This appeal arose from the denial without a hearing of Luke Warner’s (“Warner”) Hawaii Rules of Penal Procedure Rule 40 (2006) petition for post-conviction relief. On June 17, 2016, Warner pleaded guilty to multiple drug, theft, and firearm-related offenses. The circuit court (sentencing court)

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imposed concurrent prison terms, the longest of which was ten years, and various monetary assessments. Warner later filed the instant pro se Haw. R. Penal P. Rule 40 petition in the circuit court. He challenged the sentencing court’s judgment of conviction and sentence on eight grounds. Warner asked the circuit court to end his sentence, to waive all “fines and fees,” and for “compensatory judgments” for civil injustices. The circuit court ruled Warner had waived some of the grounds in his petition and other grounds that requested compensatory relief were unavailable under Haw. R. Penal P. Rule 40. The circuit court denied Warner’s petition without a hearing and the ICA affirmed. The Hawaii Supreme Court held (1) there was no error in dismissing grounds one through five of Warner’s petition without a hearing based on waiver; but (2) based on the reasons discussed below, Warner raised a colorable claim as to the monetary assessments, which constitute fines; and (3) pursuant to Haw. R. Penal P. Rule 40(c)(3), grounds six through eight of Warner’s petition raised civil claims required to be transferred for disposition under the civil rules.

Torts Coles v. City and County of Honolulu, SCRQ-22-0000097, September 2, 2022, (Eddins, J.). First came the flood: on April 13, 2018, torrential rains pummeled Oahu. Then came the lawsuit: plaintiff Hakim Ouansafi filed a class action lawsuit against the City and County of Honolulu (the City) in the circuit court. Ouansafi said that the City’s failure to inspect and maintain its East Honolulu storm and drainage system (the Drainage System) was the reason he, and other Honolulu residents like him, had been injured by the April 13, 2018 flood (the Flood). Ouansafi moved for class certification. But before his motion was decided, he settled on an individual basis with the City. The court denied

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class certification. After the denial of class certification, individuals affected by the Flood brought twelve separate actions against the City in the circuit court. Seven of those actions were assigned to Judge Dean Ochiai. The City filed motions to dismiss in all seven. It argued the suits were barred because they did not comply with Haw. Rev. Stat. § 4672’s (2012) two-year notice requirement. The plaintiffs argued their suits were timely because — with respect to claims arising from the Flood — Haw. Rev. Stat. § 46-72’s statute of limitations was tolled between October 12, 2018 (when Ouansafi filed his class action) and June 23, 2021 (when the court denied class certification in Ouansafi’s suit). Alongside its motions to dismiss, the City also filed motions to reserve questions pursuant to Hawaii Rules of Appellate Procedure Rule 15(a)2 in five of the cases before Judge Ochiai (the Individual Suits). The City asked the trial court to reserve two questions of law to the Hawaii Supreme Court for consideration: (1) Whether a class action complaint fails to satisfy the notice requirements of Haw. Rev. Stat. § 46-72 because class action tolling does not apply to Haw. Rev. Stat. § 46-72; and (2) Whether class action tolling of the twoyear statute of limitations in Haw. Rev. Stat. § 657-7 applies in the context of mass tort actions where a plaintiff is seeking personal damages such as emotional distress, and where the class representative’s motion for class certification is denied on all four required prongs, including commonality. The court granted the City’s motions to reserve questions. The Hawaii Supreme Court concluded that: (1) class action tolling applies to Haw. Rev. Stat. § 46-72 and that a class action complaint may therefore satisfy the statute’s notice requirement; and (2) the availability of class action tolling turns not on whether or not the class action is a “mass tort,” but rather on whether it provided the

defendant notice of the subject matter and potential size of the litigation at issue. The Hawaii Supreme Court concluded that because the Ouansafi complaint satisfied these requirements; therefore, class action tolling applied to the Individual Suits.

Water Rights Kiaì Wai O Waiàleàle v. Department of Water, County of Kauai, No. SCAP-200000487, September 23, 2022, (McKenna, J.). This transfer case addressed the required scope of environmental review under the Hawaii Environmental Policy Act (HEPA) and its administrative rules. The Department of Water, County of Kauai (KDOW) proposed to install an 18-inchdiameter water transmission line in the Lihue area. The proposed line (relief line) would run approximately 9,000 feet in length and connect on each end to existing KDOW water lines. Pursuant to HEPA, KDOW prepared a draft environmental assessment (DEA) for the relief line and made an anticipated finding of no significant impact (AFONSI). After receiving comments on the DEA, KDOW published its final environmental assessment (FEA) and made a finding of no significant impact (FONSI). Kia‘i Wai o Wai‘ale‘ale (Kia‘i Wai) challenged the FEA in the Environmental Court of the Fifth Circuit (environmental court). In part, Kia‘i Wai argued KDOW did not comply with HEPA and its administrative rules because the FEA does not analyze how the relief line would facilitate greater water withdrawals and impact streams in Kaua‘i’s southeastern watersheds. Kia‘i Wai also argued the relief line was improperly “segmented” from certain Lihue development projects and a water treatment plant project, and those projects therefore should have been analyzed as part of the same “action.” The environmental court granted summary judgment in favor of KDOW as to all of Kia‘i Wai’s claims. The

Hawaii Supreme Court held KDOW did not properly analyze the impact of water withdrawals facilitated by the relief line. The FEA does not analyze possible increased water withdrawals, concluding the relief line “will not increase withdrawal of water.” However, the record—including the FEA itself—indicated the relief line would carry more water from an upgraded water treatment plant to meet the needs of new developments. HEPA and its administrative rules required analysis of “secondary impacts,” which can occur outside the physical footprint of a project. Additionally, KDOW may have improperly “segmented” the relief line from planned development projects and a water treatment facility project. The Hawaii Supreme Court clarified the “independent utility” test and held that a project may be improperly segmented from other projects even if it has some independent utility. The Hawaii Supreme Court adopted the “double” or “multiple” independent utility test and held the independent utility test required courts to consider whether each of the projects—not just one of the projects— would occur independently. Hence, the Hawaii Supreme Court concluded KDOW must prepare a new environmental assessment (EA) that complied with HEPA and its administrative rules.

Intermediate Court of Appeals Contract Nakaoka v. Shizuru, No. CAAP-200000320, September 1, 2022, (Wadsworth, J.). This appeal stemmed from a dispute involving the sale of residential real property, in which PlaintiffsAppellants Aryn Nakaoka and Darcie Nakaoka (the Nakaokas), as buyers, alleged that Defendants-Appellees Eugene Shizuru and Carole Shizuru (the Shizurus), as sellers, failed to disclose the presence of asbestos on the property.

Defendant-Appellee Daniel T.M. Choy, individually and dba Corinthians Realty (Daniel), was the Shizurus’ real estate agent, and Defendant-Appellee Lyniel Choy, individually and dba Rainbow Realty International (Lyniel), assisted Daniel with the transaction. The Nakaokas alleged that Daniel and Lyniel breached legal duties owed to the Nakaokas related to the non-disclosure of asbestos. The Nakaokas appealed from the April 8, 2020 Final Judgment (Judgment), entered in favor of the Shizurus, Daniel, and Lyniel (collectively, Appellees) by the circuit court. The Nakaokas also challenged the following post-judgment orders (collectively, the Orders Awarding Fees and Costs), entered on July 17, 2020, by the Circuit Court. In the Order Re 508D Claims, the circuit court ruled that the Nakaokas’ failure to comply with the mediation provision in the parties’ purchase contract deprived the court of “jurisdiction” over the Nakaokas’ lawsuit. The Nakaokas raised a single point of error on appeal: Having concluded that it lacked subject matter jurisdiction via its December 13, 2019 Order [Re 508D Claims], the Circuit Court committed reversible error when it thereafter entered Judgment in favor of Appellees, entertained Appellees’ motions for awards of attorneys’ fees and costs, and then ultimately awarded all Appellees their full fee and cost requests. As a threshold matter, the ICA held that the circuit court lacked jurisdiction to enter the July 17, 2020 order granting the Shizurus’ motion for costs. The motion for costs was filed after the notice of appeal was filed, and did not qualify as a motion extending the time for appeal (“tolling motion”) under Hawaii Rules of Appellate Procedure Rule 4(a). The filing of the notice of appeal thus divested the circuit court of jurisdiction to decide the Shizurus’ motion for costs. With respect to the Nakaoka’s point of error, the ICA held that the mediation provision in

the purchase contract, read in conjunction with Hawaii Revised Statutes § 508D-18, functioned as a condition precedent to filing suit, but the failure to mediate in these circumstances did not divest the circuit court of subject matter jurisdiction.

Family Meyers v. Meyers, No. CAAP-180000473, August 25, 2022, (Wadsworth, J.). This appeal arose out of post-judgment proceedings in a divorce case between self-represented Plaintiff-Appellant Lukela S. Meyers (Lukela) and Defendant-Appellee Christina K. Meyers (Christina). Following settlement conferences in April 2017, Lukela and Christina signed, and the Family Court entered, a July 21, 2017 Stipulated Decree Granting Divorce (Stipulated Divorce Decree). Almost a year later, on July 20, 2018, Lukela filed a “Motion for Relief from Judgment/Settlement Pursuant to [Hawaii Family Court Rules (HFCR)] Rule 60(b)” (Rule 60(b) Motion). Lukela argued that events on the morning of July 21, 2017, including statements by the Family Court on the issue of Lukela’s inheritance, constituted “surprise” warranting relief under Haw. Family Ct. R. Rule 60(b)(1), and undue influence and coercion warranting relief under Haw. Family Ct. R. Rule 60(b)(6). Lukela appealed from the September 4, 2018 “Findings of Facts, Conclusions of Laws, and Order Denying [Lukela’s] [HFCR] Rule 60(b) Motion for Relief from Judgment Filed July 20, 2018” (FOFs/COLs/Order), entered by the Family Court. Lukela contended that the Family Court erred: (1) “when it found arguments from [Lukela’s] briefs untimely”; and (2) “when it found that [Lukela] has not met the burden of establishing that . . . surprise . . . had occurred, justifying the setting aside of the Stipulated Divorce Decree.” Lukela also challenged several FOFs and COLs for

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failing to include certain statements or for other asserted errors. The ICA held that the Family Court erred in finding that the Rule 60(b) Motion was untimely on the issue of Lukela’s inheritance due to the motion not being filed within one year of the April 2017 settlement conferences. However, the error was harmless as to Lukela’s arguments based on Haw. Family Ct. R. Rule 60(b)(1). The Family Court ruled on the merits of the Rule 60(b)(1) arguments and did not abuse its discretion in concluding that Lukela had not established “surprise” justifying the setting aside of the Stipulated Divorce Decree. The Family Court did not, however, separately analyze Lukela’s undue influence and coercion arguments based on Haw. Family Ct. R. Rule 60(b)(6) or set forth the basis for rejecting those arguments. It is therefore unclear whether the Family Court concluded that Lukela’s Rule 60(b)(6) arguments were untimely, and the record on appeal was insufficient to determine whether the Family Court abused its discretion in denying the requested relief.

Health In the Matter of Florence Fujimori, No. CAAP-17-0000466, August 31, 2022, (McCullen, J.). AppellantsApplicants/Appellants Edward Fujimori (Edward) and Florence Fujimori (Florence) (collectively, Fujimoris) appeal from the Circuit Court order and May 11, 2017 judgment affirming Appellees/Appellees Department of Human Services’ (DHS) administrative decisions denying Edward’s and Florence’s applications for Medicaid assistance to pay for their long-term care. The ICA concluded that Edward and Florence transferred their life estate for less than market value, intending to qualify for Medicaid by improperly diminishing the value of their life estate. Moreover, Edward did not provide requested information to DOH.

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(Continued from page 19) upon the family) by Family Court judges who not only face crushing back-logs, but are constrained by the law and the record before them, to engage in such creativity.

assuming there is anything left, following mediation – is in dispute. 15 I.e., the mediator and respective counsel for Plaintiff and Defendant.

Mediated agreements must, of course, not contain provisions contrary to the law or public policy. 9

The case concerns the non-consent adoption of a child, whose natural father objects. 10

Such an enduring and ever-expanding case history, can only portend, further acrimony and stress for the parties, as well as entirely exhausted bank accounts, to say nothing of the uncertainty and instability thrust upon the innocent child, whose life and residence will continue to be in flux and in limbo. 11

If mediation was in general, a lousy thing or a process that more often than not yielded marginal results, then the whole system would need revamping. But, statistics if not reality clearly indicate otherwise. In a few words, the mediation process over time has not only “talked the talk,” but has more importantly “walked the walk.” It has proven itself as an effective tool to achieve settlement(s) which survive the test of time.

(a) Authority to order. The court, sua sponte or upon motion by a party, may, in exercise of its discretion, order the parties to participate in a nonbinding Alternative Dispute Resolution process (ADR or ADR process) subject to terms and conditions imposed by the court. ADR includes mediation or other such process the court determines may be helpful in encouraging an economic and fair resolution of all or any part of the disputes presented in the matter. Subsections (b) through (d) do not apply to ADR administered by the Hawai‘i Judiciary, such as the Volunteer Settlement Master Program.

(b) Factors to consider; fees and expenses. Before ordering a case to ADR, the court may consider factors, including, but not limited to, the current status of the case, whether the parties would be better served by a settlement conference held by the court, whether the parties are willing to participate in ADR, and whether the parties have previously participated in ADR in the pending matter. In addition, the court may consider whether ordering a case into ADR would result in an unfair or unreasonable economic burden on any party. Id. (italics added) (2) All ADR fees and expenses of the neutral shall be borne equally by the parties unless otherwise agreed to by the parties, ordered by the court, or provided by law. 13

The case history may be useful in determining whether the parties can indeed, mediate effectively.

Disgruntlement would not be far-fetched, in the face of a potentially substantial, spend-down of the marital estate, the division of which –

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16 (c) Selection of the neutral. If the ADR process ordered by the court involves the selection of a neutral, the parties shall first attempt to select a neutral by mutual agreement. If the parties cannot agree, then each party shall submit a list to the court nominating up to 3 prospective neutrals by a date determined by the court. The court shall then decide which person shall serve as the neutral. If at any time the neutral becomes unable or unwilling to serve, and the parties are unable to agree on the selection of another neutral, the court shall select another neutral from the names previously provided by the parties. (d) Disclosure. Unless waived by all parties, the parties, counsel, and neutral shall disclose to each other the identity of other participants who may be included in the ADR process. In addition, the neutral shall disclose any other facts and information, including relationships, that a reasonable person would consider likely to affect the impartiality of the neutral, including the neutral’s relationships with counsel. The parties, counsel, and neutral shall have a continuing obligation to disclose any information they subsequently learn during the ADR process that a reasonable person would consider likely to affect the impartiality of the neutral. 17

Notably there is no corresponding rule in the Haw. Fam. Ct. R.

The Supreme Court of Appeals of West Virginia has discussed a circuit court’s discretion to consider sanctions for “failure to meaningfully participate in mediation.” Murthy v. KarpacsBrown, 788 S.E.2d 18, 26 (W. Va. 2016).

In a termination of parental rights proceeding, bad faith mediation was not at issue, but rather the merits of the case were analyzed and considered. In In re Braelyn S. at 30, No. E2020-00043, Ct. of App. of Tenn. Knoxville July 22, 2020, the court stated “[T]o be sure, Mother stymied Father’s relationship with the child, but when Father had opportunities to make progress in his desire to forge a relationship with the child, he failed to follow through. For example, Father chose to end mediation when Mother made reasonable offers concerning visitation.” The action of not mediating in good faith seemingly led to – at the very least – an adverse inference against father in his parental rights case. It may stand to reason that any parent who fails to mediate in good faith on child custody issues risks some type of adverse inference as a parent seriously concerned with the well-being of their child(ren) would do anything to further that concern. The unique nature of child custody cases renders parental behavior a key aspect of determining the best interests of the

child. Compare with Rawlings v. Rawlings, 200 P.3d 662, 670 (Utah App. 2008) (providing that while failing to mediate may warrant sanctions, terminating a mediation would likely not), reversed on other grounds by Rawlings v. Rawlings, 240 P.3d 754 (Utah 2010). 20

There is a degree of familiarity and truth, to the old adage, “I want my day in court.” 21

Hawaii has a similar statute discussed supra. See also n.1, supra. 22

The dissenting opinion noted that “at the end of the [mediation] process, [wife] was presented with a settlement agreement. According to her affidavit, she was tired and hungry and wished to review the settlement with her co-counsel, who had not attended the mediation. During a 35minute encounter with the mediator and her lawyer, [wife] claims that she was told she could not leave until she signed the agreement. She signed under duress, she contends. The next day, [wife] sought to rescind the agreement. 23

As set forth herein, clients who wish to rescind a mediation agreement can seek to do so in court. However, that is not the only problem. Counsel potentially face complaints (meritorious or not) for malpractice and/or ethical violations on the grounds that he/she failed to properly advise or represent their client, thereby leading to a unwanted agreement. Another complaint that clients may lodge after entering into a mediation agreement (or even during mediation itself) is that counsel “sided” with the other party.

Tom S. Tanimoto, the principal author of this article, has been licensed to practice law in the State of Hawaii, since 2004, was the Family Law Section (FLS) Chair and an HSBA Leadership Institute Fellow in 2018. He currently serves on the Board of Bar Examiners and enjoys serving as a volunteer mediator for the Fifth Circuit Family Court, and as a Volunteer Settlement Master for the First Circuit Family Court. Mr. Tanimoto presented a family law case update at the 2021 Bar Convention for the Family Law Section, and is its 2022, chair-elect. P. Gregory Frey assisted Mr. Tanimoto significantly with the drafting and editing of this article and is licensed to practice law in the State of Hawaii since 1987, is a partner and senior attorney with Coates Frey Hackett & Gibson, AAL LLLC, was FLS Chair in 2002, and was HSBA President in 2020. Mr. Frey received an advanced Certificate in Conflict Resolution from Cornell University and is the principal of his firm’s Divorce With Decency, Mediation Clinic. He is a third-generation attorney.

ATTORNEY WANTED ASSOCIATE ATTORNEY: Our growing Honolulu law firm is seeking Associate Attorneys to join our team. Position will involve handling all aspects of the litigation process, including strategy, drafting pleadings, motions, discovery, etc. and court experience. Must have good time management skills & be highly organized. Ideal Candidate will have excellent written communication skills, strong analytical and research skills as well as a thirst for personal and professional growth. Salary commensurate with experience. Must be licensed in Hawaii. For immediate consideration, please submit resume and writing samples to: phann@hawaiilegal.com Now let's talk "PERKS": Collaborative work environment, 13 paid holidays per year plus the week between Christmas and New Year's off with pay! Fully paid medical/dental/vision through your choice of HMSA or Kaiser Permanente, company provided life insurance, paid downtown parking, 3% annual salary match through our 401K, in-house gym, weekly lunches/breakfasts, flexible/partial work from home schedule, low billable hour requirement…the list goes on! Why not apply to be part of our PMK Ohana?! ASSOCIATE ATTORNEY (Downtown Honolulu) Established mid-sized firm is seeking an experienced Associate Attorney, licensed in Hawaii, to join our team. We are looking for someone with 3+ years of litigation experience, and is looking to gain more experience in a wide variety of areas of law. We hope to find someone with excellent writing skills, strong research skills, written and verbal communication skills, and who is able to multitask. We need to add another team player to our already outstanding team. We offer a very competitive salary and benefits package. Please email your resume and writing sample for immediate consideration or mail to: BRONSTER FUJICHAKU ROBBINS Attention: Administrator 1003 Bishop Street Suite 2300 Honolulu, Hawaii 96813. pbraun@bfrhawaii.com All inquiries are held in strict confidence!

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POSITION WANTED EXPERIENCED ATTORNEY, to supplement pension, seeks a lower-level private practice or government paralegal or associate-attorney full-time position. Please send inquiries to: Attorney at Law, 1687 Pensacola St., #1004, Honolulu, HI 96822, and I will respond immediately for an interview.

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November 2022

HAWAII BAR JOURNAL