I’m overdue for another good rant. This one has to do with mandatory mediation.

Mediation is where a neutral third-party tries to help the litigants come to an agreement that resolves their case. A mediator can’t decide the case, however. I’m not against mediation, and I’ve participated in mediation both as counsel for one of the parties and also as a court-appointed mediator. Rule 53.1 of the Hawaii Family Court Rules authorizes the court to order the parties to any family law matter to participate in mediation. While it seems like a good idea, mandatory mediation is overused, and has a number of negative consequences. If I were writing the rules, I’d repeal this one.

One of the biggest misuses of this rule occurs when judges refuse to set a trial date, requiring that the parties to go to mediation instead. More often than not, parties don’t get serious about settlement until the threat of a trial on a date certain is hanging over their heads. When you know that you only have until X-day to settle, and the next day your disputes will be put into the hands of a judge, there is motivation to settle instead of diddling around. Pretrial litigation deadlines also encourage settlement. When the exhibit exchange deadline has passed, each party pretty much knows what the other will be able to prove at trial. Big talk ends, and hard reality sets in.

These delays can cause financial losses to clients. For example, in one case I recently handled, a major issue was the buyout of the former marital residence. By refusing to set a trial date and ordering the parties to continue in mediation that they had previously engaged in on a voluntary basis, the court cost my client thousands of dollars because the real estate market was rising. And, of course, if the court does not set a trial date and continues the trial setting hearing for another day, that’s another expensive trip to Kapolei that runs up attorneys’ fees. Some judges have required three or more hearings before setting a trial date.

The second problem with mandatory mediation is that it causes the parties to incur additional attorney’s fees and costs. Mediators generally aren’t free. The good ones charge a retainer of $6,000 and the same hourly rates as divorce attorneys. The court will reach into your wallet and make you pay for the mediator’s time. The parties will also have to pay for their attorneys’ time preparing for and attending mediation sessions. If a settlement is reached, it may well have been less expensive than going to trial. That’s one of the advantages of mediation that is often touted. However, mediation does not always produce settlements. If a settlement is not reached, the case will have to go to trial anyway and the ultimate cost will be much higher than if the parties had skipped mediation and gone straight to trial. Even when a settlement is reached, there are some cases where it would have been far less expensive to put the evidence before a judge and get a decision, than to spend endless sessions in mediation.

A third problem is that there are some cases in which mediation is clearly going to be a waste of time. In family law matters, parties are frequently emotional, bitter and vindictive. Sometimes they are mentally ill. Some of the issues in these cases simply don’t admit of compromise. How do you mediate a child visitation issue where one parent thinks the other is sexually abusing the child?

Good lawyers always discuss the pros and cons of mediation with clients. It’s quite another thing, however, to have mediation shoved down your throat. Nonetheless, family court judges love to force parties into mediation. It keeps their trial dockets under control, and often produces settlements simply because the parties run out of money and can’t afford to get to trial.

Since most of these people pay the taxes that support Hawaii’s judicial system, it’s understandable that they get a little peeved when a judge who is getting paid about $200,000 per year gaffs their case off on someone else to try to solve, and makes them pay for it, too. These folks thought they had already paid for a dispute resolution system, called the Hawaii Judiciary. A number have complained to me that they aren’t getting much bang for their buck.

For now, however, mandatory mediation continues to be in vogue with judges, and my views are a voice in the wilderness.