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Archive for the ‘Mediation and Arbitration’ Category

Hawaii Personal Injury Attorneys Must Get Court Approval Of Settlements For Minors

Thursday, February 2nd, 2012

A Hawaii personal injury attorney must be mindful of special procedures he or she must follow when litigating a personal injury action on behalf of a minor or an incapacitated person.  Because a minor or incapacitated person cannot make an informed decision regarding his or her case, Hawaii law requires that any settlement or judgment received in a minor’s court case be approved by a judge presiding in probate and that a conservator is appointed on behalf of the minor or incapacitated person.  Rule 101 of the Hawaii Probate Rules makes it the Plaintiff’s Attorney’s responsibility to initiate a conservatorship action for the eventual settlement or judgment in favor of the minor or incapacitated plaintiff.  Rule 101 of the Hawaii Probate Rules states as follows:

Rule 101. PERSONAL INJURY RECOVERIES.

When a minor or incapacitated person receives a settlement or judgment from any claim or action, a conservatorship action must be initiated by the plaintiff’s attorney and any settlement approved by the court insofar as it affects the protected person or respondent. The judge presiding in probate shall appoint a conservator for the minor or incapacitated individual and determine whether any settlement is reasonable. A flag sheet shall be presented pursuant to Rule 103 for any hearing on a petition that seeks compromise of a tort claim on behalf of a minor or incapacitated person.

Hawaii Rules of Probate Court R. 101.

The personal injury attorney’s responsibility to initiate conservatorship proceedings and obtain judicial approval of settlement or judgment extends to matters in Federal Court.  Indeed, Rule 17.1 of the Local Rules of the District Court of Hawaii requires that Federal Court litigants abide by state laws (i.e., HRP 101) as to court approval of settlements involving minors.  Rule 17.1 provides as follows:

Except as otherwise permitted by statute or federal rule, no action by or on behalf of a minor or incompetent shall be dismissed, discontinued, or terminated without the approval of the court.  When required by state law, court approval shall also be obtained from the appropriate state court having jurisdiction over such matters for any settlement or other disposition of litigation involving a minor or incompetent.

LR 17.1 (emphasis added).

Additionally, even Hawaii personal injury attorneys obtaining settlements or awards in arbitration in favor of a minor or incapacitated person must initiate a conservatorship proceeding and have that settlement or award approved by a judge sitting in probate.  H.R.S. § 658A-22 states that a party receiving an arbitration award may ask the court to confirm the award.  H.R.S. § 658A-22 provides as follows:

After a party to an arbitration proceeding receives notice of an award, the party may make a motion to the court for an order confirming the award at which time the court shall issue a confirming order unless the award is modified or corrected pursuant to section 658A-20 or 658A-25 or is vacated pursuant to section 658A-23.

HRS § 658A-22.

The confirmation of an arbitration award converts the award into an enforceable judgment, thus triggering Hawaii Probate Rule 101.  Mikelson v. United Services Auto. Ass’n, 122 Hawai’i 393, 396 (Hawai‘i App. 2010) (“Confirmation of an arbitration award is an ‘expeditious procedure for reducing or converting the arbitration award to a judgment which can be enforced by judicial writ.’”).  The Hawaii personal injury attorney who receives a favorable outcome for his or her minor or incapacitated client is cautioned not to forget these important special requirements in representing a minor or incapacitated client.

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The Kaloko Dam Settlement

Tuesday, November 3rd, 2009

The Kaloko Dam flood was a terrible tragedy, about which I previously posted in September of 2007. I am happy to report that we have reached a successful settlement, which will allow our clients to restore their idyllic property.

Our clients’ property, on the island of Kauai, was severely damaged by the Ka Loko Dam flood. I represented one of the largest property owners damaged by the Ka Loko Dam flood. Admittedly, I was part of a team of plaintiffs attorneys. (A case this size had to be handled by a team of attorneys). The case allowed me to work with some of Hawaii’s best attorneys. It was also an honor to watch the manner in which this difficult case was handled by the Court. As an advocate, I was not always pleased with every ruling, however, the way the Court controlled the litigation was inspiring. I also participated in the mediation skillfully handled by Warren Price and Keith Hunter. It was conducted over several months and involved multiple parties and insurance carriers. This complex case involved every imaginable issue of law and procedure. The attorneys for the plaintiffs and the defendants handled this difficult case with the highest degree of courtesy and professionalism.

In my September 2007 Kaloko Dam blog, I wrote the following:

We are very proud to represent this family in their pursuit for justice. In a few years, we intend to write a follow up to this blog in which we will describe how we helped our clients restore their beautiful Kauai landscape.

This outcome will allow our clients to restore their home to the condition it was in before the flood. I also hope that this settlement allows the Kauai community to continue the process of healing from this tragedy.

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Arbitration in Hawaii (Part 2)

Friday, March 6th, 2009

Hawaii Courts strongly encourage arbitration. In fact, Hawaii Courts favor arbitration to such an extent that if there are three parties to a contract (and one didn’t sign the agreement containing the arbitration clause) the Court will likely enforce the arbitration agreement (if the nonsignatory wants the agreement enforced).

That’s right, in certain circumstances nonsignatories to an agreement have standing to invoke an agreement’s arbitration clause. The Hawaii Supreme Court explained this principle in Luke v Gentry, Ltd., 105 Hawaii 241, 248 (Hawaii, 2004) as follows:

[W]e hold that a nonsignatory agent has standing to invoke an arbitration agreement if one of the following two conditions is met:

First, when the signatory to a written agreement containing an arbitration clause must rely on the terms of the written agreement in asserting its claims against the nonsignatory. Second, when the signatory to the contract containing a arbitration clause raises allegations of substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract.

Id. at 248.

Thus, if you have entered into an arbitration agreement in Hawaii, it appears that it will be enforceable by parties and non parties.

Moreover, if a Hawaii court holds that defendant has standing to invoke an arbitration clause, the court will stay the case pending the outcome of the arbitration. H.R.S. section 658A-7. Admittedly, the stay may be limited to the claim(s) subject to the arbitration that are severable. H.R.S. section 658A-7; Ueoka v Szymanski, 107 Hawaii 386, 396 (Hawaii, 2005). However, in order to promote judicial efficiency, the court will likely the remainder of the action (not just the claims subject to the arbitration) until the arbitrable issues are decided or the parties waive their right to arbitrate. Creative Telecommunications, Inc. v Breeden, 120 F.Supp.2d, 1225, 1242-43 (D.Haw., 1999)(“[I]f non-arbitrable issues depend on arbitrable issues, or if resolution of arbitrable issues would render the district court’s ruling on the non-arbitrable issues unnecessary, litigation on the non-arbitrable issues should be stayed pending arbitration.”).

For a discussion of our Arbitration and Mediation Practice, please click
here.

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Arbitration in Hawaii

Monday, March 2nd, 2009

Hawaii courts favor arbitration. Arbitration is a device in which the litigants agree to hire a private, independent third party to decide their case. It is generally accepted that parties will reduce litigation costs by arbitrating a matter, since the process will be streamlined. It is quite common for parties to agree to arbitrate in a contract, although any case may be resolved through arbitration (so long as all parties agree to do so).

If there is an arbitration clause in an agreement, courts are obligated to enforce it so long as the court determines that the dispute is subject to the clause in the agreement. H.R.S. section 658A-6, H.R.S. section 658A-7. Moreover, if (i) a party to the contract files a motion to compel arbitration or (ii) the court orders arbitration, then the court shall stay any proceeding that involves the same claim(s). H.R.S. section 658A-7.

Hawaii Revised Statutes (“H.R.S”) section 658A-6 states the following:

(a) An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.

(b) The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate.

(c) An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable.

(d) If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.

Further, H.R.S. section 658A-7 provides,

(a) On motion of a person showing an agreement to arbitrate and alleging another person’s refusal to arbitrate pursuant to the agreement:

(1) If the refusing party does not appear or does not oppose the motion, the court shall order the parties to arbitrate; and

(2) If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.

(b) On motion of a person alleging that an arbitration proceeding has been initiated or threatened but that there is no agreement to arbitrate, the court shall proceed summarily to decide the issue. If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate.

(c) If the court finds that there is no enforceable agreement, it shall not, pursuant to subsection (a) or (b), order the parties to arbitrate.

(d) The court shall not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.

(e) If a proceeding involving a claim referable to arbitration under an alleged agreement to arbitrate is pending in court, a motion under this section shall be made in that court. Otherwise a motion under this section shall be made in any court as provided in section 658A-27.

(f) If a party makes a motion to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.

(g) If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration. If a claim subject to the arbitration is severable, the court may limit the stay to that claim.

Arbitrations are heavily favored by Hawaii Courts. The Hawaii Supreme Court in Lee v Heftel explained the rationale behind this policy:

. . .[We] emphasize the importance of utilizing alternative methods of dispute resolution in an effort to reduce the growing number of cases that crowd our courts each year. This court has long recognized the strong public policy supporting Hawaii’s arbitration statutes as codified in HRS Chapter 658. We have stated that the proclaimed policy . . . is to encourage arbitration as a means of settling differences and thereby avoiding lititgation. Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. As with any contract, the parties’ intentions control, but those intentions are generously construed as to issues of arbitrability. The preeminent concern of Congress in passing the [Federal Arbitration] Act was to enforce private agreements into which parties had entered, [a concern which] requires that we rigorously enforce agreements to arbitrate.

Lee v. Heftel, 81 Hawaii 1,4 (1996)(no citations or brackets included).

For a discussion of our Arbitration and Mediation Practice, please click here.

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Hawaii Mediation

Friday, July 25th, 2008

Mediation has become a very effective litigation tool in Hawaii. We are asked about the possiblity of a mediation by clients and potential clients almost daily. Although mediation is practiced throughout the United States, the people of Hawaii, with their unique cultural history, seem particularly well-equipped to effectively use mediation. Although I was trained to practice law in New York, I moved to Hawaii in 1993. I have personally observed that Hawaii has a strong preference to mediation and that some of our finest jurists actively participate in this process.

For those unfamiliar with this practice, Mediation is a device in which parties to a dispute agree on an impartial third person who guides the litigants to a settlement using various negotiation and/or communication techniques. Although Mediation may serve several purposes, the overall goal is to assist the parties to find a way to solve their own problems usually through a negotiated settlement.

The selection of the mediator is critical. I believe that the parties should look for the following factors in a mediator:

1. The mediator has no conflict of interest. Obviously, if the mediation is to succeed, the litigants have to be able to rely that the mediator is completely unbiased and is attempting to guide them to a fair resolution of their dispute.

2. The mediator has adequate time to devote to the case. In Honolulu, some of the most talented mediators must be retained months in advance. If the potential mediator does not have time to devote to your case, find another mediator.

3. The mediator should be able to meet the parties’ expectations with regard to timing. Some cases absolutely must be resolved immediately. Counsel should take this into consideration when selecting a mediator.

4. The mediator should be completely candid and honest with all aspects of the process. If the potential mediator neglects to tell you about an important conflict until the mediation has begun, you may need a new mediator.

5. The mediator must be qualified. The goal is to settle the dispute. It does not necessarily aid the process if the mediator is a friend of all of the lawyers. The mediator does not have to be your friend. His or her job is simply to find a way to settle your case.

Finally, the litigants should understand that if a mediation is to be successful, they likely must be willing to compromise. If your litigation posture is such that you must “destroy” the opposing party, you certainly will not do so in a mediation. If you are not prepared to compromise, you are likely not ready to mediate.

For a description of our experience in mediations and arbitrations, please click the following link:
Mediation and Arbitration in Hawaii

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Mediation in Hawaii

Tuesday, August 29th, 2006

As most Hawaii Attorneys know, mediation has become a very effective litigation tool in Hawaii. Although mediations occur throughout the United States, the people of Hawaii with their unique cultural history, seem particularly well-equipped to effectively use mediation.

Mediation is a process in which parties to a dispute agree on an impartial third person who guides the litigants to a settlement using various negotiation and/or communication techniques. Although Mediation may serve several purposes, its overall goal is to help the parties settle their own problems.

The selection of the mediator is critical. Parties should look for the following factors in a mediator:

1. The mediator has no conflicts of interests.

2. The mediator has adequate time to devote to the case.

3. The mediator should be able to meet the parties’ expectations with regard to timing.

4. The mediator should be completely candid and honest with all aspects of the process.

5. The mediator must be qualified.

If you can be sure that your potential mediator meets these factors, he or she may be right for your case.

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