Hawai‘i’s eviction moratorium will likely end sometime this year, and landlords and tenants will have to resolve their disputes over unpaid rent, utilities, and other monies owed. This is the time for those with impending disputes to begin looking for their preferred solutions.
For both parties, the risks of losing at trial come with serious consequences, but mediation could offer attractive options for landlords with good tenants having trouble paying their bills. Mediation can reveal creative solutions that keep landlords’ units occupied and tenants from becoming homeless.
For landlords, it is important to understand that the consequences of a loss in court can be quite serious. Along with the immediate financial impact (average attorney fees: $225/hour), landlords face the additional costs of eviction. Also, in an adversarial lawsuit, tenants could stop making any payments while continuing to reside on property for another one to four months (or longer, depending on court schedules and appeals) for free. Moreover, a history of evictions in public court records won’t help with attracting good tenants.
For tenants, the risks of losing could mean owing the landlord for rent, court costs, interest, and attorney fees. Evicted tenants usually lose their security deposits, then pay moving expenses, application fees, and security deposits for a new residence. In the longer term, their credit history may be harmed, and future background checks could reveal the eviction, disqualifying them from a much-needed rental.
Under Hawai‘i law, if either the landlord or tenant misses a court date, the judge will issue a default judgment in favor of the other party.
In court, a judge will decide the outcome and all records of the proceedings are public.
Advantages of mediation:
• Mediation provides a private process where an impartial mediator helps guide parties to resolve part or all of a dispute voluntarily, informally, and confidentially. Unlike litigation or binding arbitration, the parties control the terms of any agreement reached.
• Mediation is far less expensive than litigation.
• Mediation steps away from the win/lose model, allows for a wider discussion of issues, and searches for solutions everyone can accept.
• You can usually schedule a mediation faster than a court date.
• The Rules of Evidence and other requirements of court proceedings do not apply.
• Mediation maintains relationships, which is very helpful for parties who may need to have regular contact after their dispute is resolved.
During National Judicial Outreach Week (March 1 – 7), we reflect on the many benefits our legal system provides. We live in a just society founded on the rule of law – the principal that no one is above the law, and everyone is treated equally under the law. The preservation of the liberties we enjoy depends on the preservation of the rule of law, along with fair, impartial courts.
Our legal system recognizes that litigation in the courts does not always result in solutions that work for everyone or every situation. For landlords and tenants, mediation can help resolve disputes by exploring creative solutions that protect the rights of everyone involved.
While you could risk much going to court, you have nothing to lose in mediation, and much to gain.
For information on mediation services that are currently available in Hawai‘i, search “COVID-19 rapid response landlord tenant mediation Hawaii” online.
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The Honorable Michael K. Soong is Deputy Chief Judge in Hawai‘i’s Fifth Judicial Circuit
