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The Honolulu Advertiser
Posted on: Wednesday, May 3, 2006

Artifacts case needs a prompt resolution

Resolving a dispute through mediation is always preferable to hauling warring parties before a judge for a long and costly legal battle. Usually, making the attempt before anyone sets foot in the courtroom is the more productive approach.

But in the case of the Kawaihae Caves artifacts, court procedures began and then took a hiatus while a form of ho'oponopono, the more traditional Hawaiian reconciliation process, took place.

At issue were the 83 cultural artifacts that were stolen from the caves roughly a century ago, and then reinterred before the federal "repatriation" process to transfer them back to native ownership had finished.

There was high courtroom drama at the outset, with two people imprisoned for contempt. U.S. District Judge David Ezra decided to try mediation, which recently ended up back in court without a resolution.

Ezra declared it a success nonetheless his actual words were "it is no failure," if that doesn't put too fine a point on it.

From the standpoint that the mediation enforced a necessary cooling-off period and demonstrated the court's willingness to try a less formal strategy, it was a good idea at the time.

Ezra went on in his remarks to express his wish that the exercise "set a precedent in the United States courts" for the use of traditional Hawaiian settlement methods in cases like this. But mediation makes sense only as a precursor to litigation, not a courthouse tool.

If there's a lesson to be learned here, it's that mediation of these complex cultural issues is best attempted long before contentious parties come to court. Reconciliation always works best before positions harden and emotions flare, when sides are determined to avoid the expense and strain of a courtroom battle.

Once a dispute like this reaches the "court of last resort," it's better to press ahead with settling matters quickly and fairly. It's time to get the repatriation process back on the correct course.