Hawaii’s low- and moderate-income residents have historically faced a number of barriers to accessing justice.
The COVID-19 pandemic has highlighted this concern even more as our community prepares to deal with a flood of landlord-tenant disputes over unpaid rent and other expenses, once the statewide moratorium on evictions is lifted.
In our legal system, governed by the rule of law, everyone has a right to access the courts, but we also recognize this does not always provide ideal solutions for everyone. For those who prefer to forego the uncertainty, stress and expense of litigation, mediation could be an answer that helps keep landlords’ units occupied and tenants from becoming homeless.
Mediation is a dispute-resolution process where an impartial mediator guides the parties to resolve part or all of a dispute voluntarily, informally and confidentially. Unlike litigation or binding arbitration, where decision-making rests in the hands of a judge or arbitrator, the parties in mediation retain control over the terms of any agreement. The mediators do not judge, take sides or decide who’s right or wrong.
By comparison, both parties face serious consequences if they lose in court. Landlord-tenant cases can take less than 30 minutes, and regardless of the outcome, the financial impact of litigation can be significant.
While landlords might bank on the judge ordering tenants to pay the court costs and attorney’s fees (averaging $225/hour), the reality is that collecting on the judgment, or back-rent and repair expenses, is unlikely if the tenant feels no ownership of that outcome. The loss can be significant if tenants stopped making payments while residing on property — for free — throughout several months of adversarial litigation.
Moreover, tenant retaliation can create new problems for landlords, and a history of evictions in publicly searchable court records can dissuade quality tenants from renting in the future.
On the other hand, tenants should know that a loss in court could mean owing the landlord for court costs and attorney fees, in addition to rent, utilities, repairs and interest. They could also lose their security deposit. Following eviction, the tenant must pay moving expenses and the application fees and security deposits for a new residence.
In the long run, tenants with an eviction record might find their housing options become narrowed. Even a small monetary judgment will lower a tenant’s credit rating and could make housing more challenging to acquire.
Compared to court, the biggest benefit of mediation is that there is no risk of loss, and mediation is far less expensive than litigation. Currently, all landlord-tenant mediations are free at Ku‘ikahi Mediation Center (serving East Hawaii, 935-7844) and West Hawaii Mediation Center (serving West Hawaii, 885-5525).
In landlord-tenant mediation, resolutions are created and agreed to by both sides. Because the tenant is part of the decision-making, she or he can feel real ownership of the resolution, increasing the likelihood it will be followed.
Where courts and court records are generally open to the public, mediation is a private process, which is conducive to broad discussion of the issues, resulting in solutions everyone can accept.
In the process, mediation helps preserve relationships for parties who might need to have regular contact after the dispute is resolved. Mediated agreements can also include conditions specifying how the parties will deal with each other to prevent future disputes.
Mediation is widely accessible and can be faster to schedule than a court date. It is available through court referrals, and there are private mediators, including retired judges and attorneys, who specialize in landlord-tenant issues.
The Judiciary asks people to remember that our legal system operates on the rule of law, which provides that no one is above the law, and everyone is treated equally under the law. The preservation of our liberties, and a just society, depends on the preservation of this principal, along with fair, impartial courts.
We recognize that litigated solutions are not right for every situation. For landlords and tenants, mediation can help resolve disputes, reveal creative solutions and protect the rights of everyone involved.
The Honorable Michelle Kanani Laubach is deputy chief judge of Hawaii’s 3rd Judicial Circuit. In Monday’s edition, Laubach will address things that landlords and tenants should consider before going to court.