Leadership Corner: Michael F. Nauyokas
Interviewed by Dan Nakaso
Advertiser Staff Writer
Title: Attorney, mediator and arbitrator specializing in employment and labor law.
Organization: Private practice
High school: Montrose High School, Montrose, Colo.
College: Bachelor of science degree, with distinction, in agricultural and industrial management, Colorado State University, 1980; Juris Doctor degree, William S. Richardson School of Law, University of Hawaii, 1989, law review.
Breakthrough job: "It was when I went out on my own as a lawyer and mediator and arbitrator 11 years ago (with then-partner Dean Choy). I had been with Hawai'i's largest and oldest firm, Goodsill, Anderson, Quinn & Stifel. But at Goodsill, the policy was that we could only defend employers, and I also wanted to be able to represent employees and unions, and serve as an arbitrator and mediator, and those opportunities didn't exist because of the policy that we would only defend management."
Little-known fact: "I graduated from college in 2 1/2 years. I was in a big hurry back then. I wanted to be a farmer, but it was too capital-intensive, and I couldn't be successful doing that."
Major challenge: "The biggest challenge as an arbitrator, which is kind of like a private judge, is that you have to rule against one side. Two sides hire you and select you, and two sides pay you. But you have to rule against one attorney that you know in a small town who selected you and paid you, and that's difficult. To maintain an arbitration practice when you have to rule against somebody like that is a challenge."
Q. How does your role as an arbitrator differ from your work as a mediator?
A. I've done over 850 mediations, and I've been selected as an arbitrator in 150 cases. Arbitration is where you're selected as a neutral, and then you hear the evidence, and then you impose your (usually binding) decision on the parties. In mediation, you again have a third party neutral, but the mediator has to convince them to resolve the dispute.
The arbitrator has to be fair and very patient and let both sides put on their cases. Then you say, 'You win, you lose.' A mediator has to be an extremely persistent salesperson, and the product that you are selling is resolution of the dispute. You're trying to sell compromise and get the parties together to reach settlement.
Q. Mediation now makes up the biggest portion of your work. Why did you gravitate toward that side of the law?
A. In some of the cases that I tried (as an attorney), rather than having a winner and a loser, it was like we had two losers. Even the party that allegedly won was out so much time and money.
Q. You recently earned two distinctions for your mediation and arbitration work.
A. This month, I got elected as a national director to the American College of Civil Trial Mediators. And the Federal Mediation and Conciliation Service recently certified me as an arbitrator. No one else in Hawai'i has achieved that certification. It's not really something you can learn here, because there really aren't many opportunities for continuing education.
Q. Can you share some of the more satisfactory mediations you've handled?
A. They're all confidential, usually. But there was one case where one of the portions of the settlement was a raincoat for the guy who was a security guard who worked in a wet area. He alleged that they wouldn't give him a raincoat. We were having trouble settling the case, and the vice president of the company promised him a raincoat, and that settled the case, and the guy continued working for the company.
A lot of times, an apology is the key factor to settling the case. We have the parties sign a confidentiality agreement so there's no penalty for making an apology, unlike in litigation, where you're told by your lawyer never to make an admission. Because of this confidentiality agreement, their apology's not going to be admitted against them later.
Apologies are a good thing. They're something you can't do in any other forum because your lawyer won't let you. It really helps both sides come together.
Q. What is the range of financial settlements in mediation?
A. A few are in the millions, but very seldom. A few more are in the hundreds of thousands, and there are an awful lot in the tens of thousands. Usually anything smaller than that doesn't come to a professional mediator like me because of the expenses.
Q. What do you charge for your services?
A. My initial retainer is $4,000, split amongst the parties, and that's the average amount that it costs for me to resolve a case. In about half the cases, we give the people money back and in the other half, they get a bill for the additional amount that went over the $4,000 initial retainer.
Q. How long do most of your mediations take?
A. Ninety percent take one day, excluding preparation.
Q. How can you resolve a case in just one day, when lawyers have gone back and forth for months without success?
A. At the outset, I get them all to verbally commit to make their best efforts at resolution in front of everyone else. They've committed themselves in front of all of these other people. So if you get somebody who says, 'I'm out of here,' you say, 'Wait a minute. You committed to do everything possible to resolve this.' Then they stay.
Q. Why would someone opt for arbitration over mediation?
A. In some disputes, people are just unwilling to compromise for political reasons, or they need to set a precedent or lay down some sort of principle, or because what they want is the best possible result. And you can't get that by mediation because mediation, by definition, is compromise.