Haw. App. Med. Prog. R. 8

As amended through June 28, 2024

Rule 8 - Confidentiality

(a) Communication Between the Court and the Mediator or the Parties Prohibited. The mediator or any court official who becomes involved in settlement discussions as part of the program shall not communicate any matters discussed at the mediation to any court except as expressly allowed by the Uniform Mediation Act or other applicable law. Similarly, parties are prohibited from advising members of the court of discussions or actions taken at mediation.

(b) Communication by the Trial Court Judge to the Mediator. The trial judge and the mediator may communicate about matters related to the mediation, provided all parties consent to the communication before any communication begins. If the mediation does not result in a settlement and the case is remanded to the trial court by the appellate court for further proceedings, the case shall be remanded to a trial judge other than the judge who communicated with the mediator.

Haw. App. Med. Prog. R. 8

Amended September 7, 2011, effective 1/1/2012; further amended August 26, 2014, effective 1/1/2015.

COMMENTARY:

To encourage full and frank discussion, all communications and matters discussed at mediation and in subsequent discussions are kept confidential and are not to be communicated to the court. This includes the view of the mediator as to the merits of the case pending before the court. Therefore, matters discussed at mediation are confidential.

For example, the parties may not refer to or quote any statements made during the course of the mediation in briefs or at oral argument.

If all parties to the appeal consent, the trial judge who presided over the case may communicate with the mediator about matters concerning the case that may be relevant to the mediation. Such communications could be helpful and timesaving to the mediator. If there is a communication between the trial court and the mediator, and if the case is later remanded to the trial court, the trial judge assigned to the case shall not be the judge who communicated with the mediator.