In Hawaii, when a landlord tenant dispute for residential property ends up in court, it is sent automatically to mediation. In other words, both parties sit down with a neutral mediator, who helps them:
- Explain their perspective
- Listen to the other party’s perspective
- Decide whether their case can be resolved with a mutually acceptable agreement
If landlord and tenant can work out an agreement, the mediator writes down whatever they have agreed on, for example about their payment plan to take care of the back rent, or the day by when the tenant will move out.
On the contrary, if landlord and tenant are unable to reach an agreement in mediation, their case is sent back to the judge, who gives them two dates: the day by when both parties have to exchange the documents that they will show to the court during the trial, and the day of the trial.
The difference between settling a case in court or through mediation is quite simple.
In court, the judge can only consider the law, as spelled out in the Landlord Tenant Handbook, and the parties’ evidence. For example, if the tenant cannot prove that s/he had a good legal reason for not paying the rent on time and in full, the judge will most likely enter a writ of summary possession effective even forthwith.
In mediation, it’s a different story. Landlord and tenant have the opportunity to clarify and talk about anything. For example, suppose that the tenant did indeed fail to pay the last two months rent on time or in full. In mediation, the tenant can at least explain why… Perhaps his/her employer suddenly went out of business… or perhaps s/he got sick and is still dealing with some huge and unexpected medical bills.
From my experience as court mediator, when landlord and tenant have known each other for some time, they can usually work things out. They can, for example, agree on a payment plan for the back rent through monthly installments. Or they can at least agree on a reasonable amount of time – say 10-20 days – by when the tenant will move out.
In short, when landlord and tenant are in mediation, they can apply the old saying “where there is a will there is a way”. When they are in court before the judge, their will just doesn’t count.
