(a) Authority to order. The court, sua sponte or upon motion by a party, may, in exercise of its discretion, order the parties to participate in a nonbinding Alternative Dispute Resolution process (ADR or ADR process) subject to terms and conditions imposed by the court. ADR includes mediation or other such process the court determines may be helpful in encouraging an economic and fair resolution of all or any part of the disputes presented in the matter. Subsections (b) through (d) do not apply to ADR administered by the Hawai’i Judiciary, such as the Volunteer Settlement Master Program. (b) Factors to consider; fees and expenses. (1) Before ordering a case to ADR, the court may consider factors, including, but not limited to, the current status of the case, whether the parties would be better served by a settlement conference held by the court, whether the parties are willing to participate in ADR, and whether the parties have previously participated in ADR in the pending matter. In addition, the court may consider whether ordering a case into ADR would result in an unfair or unreasonable economic burden on any party. (2) All ADR fees and expenses of the neutral shall be borne equally by the parties unless otherwise agreed to by the parties, ordered by the court, or provided by law. (c) Selection of the neutral. If the ADR process ordered by the court involves the selection of a neutral, the parties shall first attempt to select a neutral by mutual agreement. If the parties cannot agree, then each party shall submit a list to the court nominating up to 3 prospective neutrals by a date determined by the court. The court shall then decide which person shall serve as the neutral. If at any time the neutral becomes unable or unwilling to serve, and the parties are unable to agree on the selection of another neutral, the court shall select another neutral from the names previously provided by the parties. (d) Disclosure. Unless waived by all parties, the parties, counsel, and neutral shall disclose to each other the identity of other participants who may be included in the ADR process. In addition, the neutral shall disclose any other facts and information, including relationships, that a reasonable person would consider likely to affect the impartiality of the neutral, including the neutral’s relationships with counsel. The parties, counsel, and neutral shall have a continuing obligation to disclose any information they subsequently learn during the ADR process that a reasonable person would consider likely to affect the impartiality of the neutral. (e) Physical presence of counsel and parties required. Lead trial counsel and parties shall attend, in person, all ADR conferences scheduled by the neutral unless excused by the neutral. (f) Communication by parties, counsel, neutral and the Court. Unless the parties otherwise agree in writing, the neutral, counsel, the parties, and other participants in any ADR process shall not communicate with the court adjudicating the merits of the matter about the substance of any position, offer or other matter related to the ADR process, nor shall a court request or order disclosure of such information unless such disclosure is required to enforce a settlement agreement, adjudicate a dispute over the neutral’s fees, or provide evidence in any attorney disciplinary proceeding, and then only to the extent required to accomplish such purpose. However, the neutral may disclose to a court whether the ADR process is scheduled, pending, or concluded; who attended; and, if applicable, whether a settlement or resolution was reached with regard to some or all issues presented.
Haw. Fam. Ct. R. 53.1
Added October 11, 1999, effective January 1, 2000; amended November 20, 2014, effective January 1, 2015.
