Hawaii Bar Journal
July 2011 #1.
Mediation in Hawaii: A Brief History
Hawaii State Bar JournalJuly 2011Mediation in Hawaii: A Brief Historyby Lou ChangThe practice of enlisting the assistance of experienced advisers trusted elders or mutual friends to assist in the resolution of disputes and to maintain harmony has strong cultural and historical roots. Conciliation as a private and informal process to preserve harmony and resolve disputes has long existed.
Many of the cultures that have become part of the community in Hawaii have recognized traditional conciliation or mediation processes. Ho'oponopono, tile Hawaiian traditional practice of conflict resolution, is well known. The Japanese had various forms of conciliation including jidan and chotei.(fn1) The Chinese would frequently call in an old friend (lao pengyou) to help resolve fights between fighting parties. Koreans have a comparable process (chung-ge ja).(fn2) Other Pacific island cultures also have traditional conflict resolution practices similar to the Samoan fa'a ilega and ifoga that seek to restore harmony in the community.
Mediation and conciliation processes are generally informal, private processes that began to be institutionalized into formal government procedures, first in the labor-management arena. In the pre-statehood era, mediation was a feature of this country's collective bargaining laws. The United States government provided for mediation in early laws establishing the Federal Board of Mediation (1913), U.S. Conciliation Service (1918) and the National Mediation Board for railroad mediation (1926). The Federal Mediation and Conciliation Service (FMCS) was created in 1947 to provide mediation and conciliation services to prevent and minimize labor-management disputes.
Hawaii experienced a tumultuous period of contentious and sometimes violent collective bargaining and labor-management relations. In the 1960s, then-Governor John A. Burns would sometimes appoint skilled troubleshooters such as Associate Justice Bert Kobayashi, Sr., to serve as the Governor's personal representative whose assistance was offered to help resolve stalled labor-management negotiations that threatened to cripple Hawaii's fragile economy(fn3) While Justice Kobayashi's role was ad hoc and informal and he was not generally called a mediator, his role...