Dobelle, Board of Regents will meet with mediator

By Beverly Creamer
Advertiser Education Writer

Attorneys for Evan Dobelle and the University of Hawai'i Board of Regents have agreed to bring in a mediator in an effort to avoid a lawsuit.

After 2 1/2 weeks of public upheaval surrounding the former university president's June 15 firing, the decision to go to mediation may indicate that both parties have switched their focus from accusation to resolution. Mediation is a process that, if successful, will avoid the protracted proceedings, high legal costs and public spectacle of a lawsuit.

Hawai'i mediators said yesterday it is a process that costs a fraction of the price of going to trial, although it makes deliberations confidential and, within bounds of law, may also make any settlement confidential.

"It's not about proof or evidence," said Pamela Martin, a research analyst for the Center for Alternative Dispute Resolution in the Hawai'i State Judiciary.

"It's about finding a resolution. It doesn't focus on what the court would have to focus on, which is evidence. They wouldn't focus on 'cause' at all. In mediation, you focus on what you want to get out of this agreement and how do we get it. ... It doesn't have the trauma and ugliness that comes with extended litigation."

It also doesn't have the big dollar signs of a potential legal battle.

"Litigation would probably run in the $300,000 to $500,000 range per party" for legal representation alone, said Keith Hunter, president and chief executive officer of the private firm Dispute Prevention and Resolution Inc., which handles 600 to 700 mediations a year.

"Mediation would be a fraction of that," Hunter said. "No more than 5 to 10 percent of the projected costs of litigation."

Former state Attorney General Warren Price III, who served under Gov. John Waihee in the late 1980s and early 1990s, has been retained to mediate the dispute between Dobelle and the regents.

Price has a private law practice in addition to handling mediations for almost two decades, according to friend and fellow mediator Hunter.

Price's office said he would not comment on the case, and there was no indication when mediation would begin.

"During this period, public comments will not be made by any party or counsel for any party," said a joint statement from regents' attorney Barry Marr and Dobelle's attorney Rick Fried. "The mediator will announce when the mediation is concluded."

The mediation process itself is bound by confidentiality and state law, said Martin, with the state judiciary's dispute resolution center. But beyond that there's broad discretion on the part of the mediator to resolve the conflict to the satisfaction of both parties — without finger pointing.

Martin said mediations can sometimes end with parties apologizing, settling for jobs, houses, money, or just about anything important to them.

"An apology — that's the most common element of a mediation that has value and can't be accomplished in the court," she said.

Mediation is increasingly the path of choice for civil disputes ranging from divorce cases through small claims, business issues, wrongful termination and more, and thousands of cases are successfully mediated every year in the state, Hawai'i mediators say.

Martin said her office advocates mediation as soon and as often as possible, and that's supported by the courts. "There's actually a rule in the laws of professional responsibility for attorneys that says attorneys have to inform their clients of alternative dispute resolution," she said.

But mediations aren't necessarily binding, unless the parties agree to that.

"You don't have to accept a resolution unless you want to," said Hunter, whose firm finalizes about 85 percent to 90 percent of its mediation cases.

But having someone guide the process and manage the communication from a neutral perspective is very useful in every case," Hunter said. "There's nothing to lose. It's a structured negotiation to explore all the settlement possibilities in a confidential forum. If they can't resolve their differences, they still have all their rights and (legal) remedies.

"But in the mediation process, you can not only manage the cost, but you still have some control over how the settlement gets shaped. In a trial, 12 strangers get to decide."

Reach Beverly Creamer at bcreamer@honoluluadvertiser.com or 525-8013.