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MEDIATING IN PARADISE: ALOHA IN DISPUTE RESOLUTION

For over a quarter of a century I have visited the Hawaiian Islands and uniformly found Hawaii to be a “gentler” community. Hawaiian “aloha” has infused as well the scores of mediations I have been privileged, as a federal contract mediator, to conduct on the islands.  “Aloha” has been transcribed, variously, as follows: “Akahai” meaning kindness to be expressed with tenderness; “Lokahi” meaning unity to be expressed with harmony; “Olu’olu” meaning agreeable to be expressed with pleasantness; “Ha’aha’a” meaning humility to be expressed with modesty, and; “Ahonui” meaning patience to be expressed with perseverance.  Another transcription features “A” for “ao” meaning light in the sense that one’s behavior should lead others and ourselves toward the light and ”O” for “oiaio” meaning truth; yet another says “A” is for “ala” which means being alert and watchful to behold divinity in all. These traits can be discerned in Hawaii mediation processes and may guide mediated resolutions even in more “cutthroat” mainland mediation marketplaces.

In one scenario, a nonprofit social service organization, itself serving disadvantaged populations including those with mental disabilities, was charged with failing (for ambiguously stated reasons) to reinstate to the same position, upon return from medical leave, an employee with a “major depressive” disorder.  The employee surmised that the organization without reasonable justification presumed that he presented a “direct threat” to himself and the organization’s program participants and, for that reason, conditioned and limited his reinstatement only to a position where he would not work alone.  This turn of events resulted shortly thereafter in the employee’s layoff, whereas, in his initial position from which leave was taken, he otherwise would have continued in employment.

The former employee wanted the organization to clearly communicate the reasons for its actions, also to compensate for lost earnings and provide a positive letter of recommendation.  In this case, the parties’ mutual recognition of their shared social service commitment “effaced” the mainland-typical, “rote,” employer response to refuse to entertain a positive recommendation request.  The organization thereby was enabled to proffer a superlative reference letter and, building upon this emblem of trust, the parties were able to reach agreement on a negotiated sum for loss of earnings and to shake hands upon conclusion of the mediation.

A positive reference letter also was pivotal in another employment disability discrimination/failure to reasonably accommodate case brought against a tourist resort by a combat veteran with PTSD against a resort. The veteran alleged that “disrespectful comment” was made concerning the military  conflicts in which he served, that demeaning personal insults were made, that resort management commented negatively on the burdensomeness of the accommodations process, and also that disparately harsh and severe disciplinary sanctions imposed on the veteran resulted in a “constructive discharge.”  Following a change in management, the veteran had experienced a sense of “unwelcomeness” at the workplace which “triggered” recurrences of PTSD.  The resort’s willingness, at mediation, to “extend” itself via the positive reference letter served to mitigate this harm and once more served as foundation for a negotiated loss of earnings figure.

Change in management structure similarly set the stage for the destruction of an employment relationship in the case of a discharged mechanic who contended that, due to his age and disability and in retaliation for internal complaints, the aviation industry employer refused to consider him for a promotion, instead, seeking out younger, non-disabled, and considerably less qualified, candidates, awarding one of these the “promotional” position, and then lying about such circumstances, thereby compounding a loss of trust.   The mechanic conveyed his loss of trust in island management to mainland headquarters, and to this event the employer responded by discharging the mechanic based upon his lack of trust in island management.

This was one of those ironic situations in which the employee’s excellent skills and ardent mitigation efforts resulted in quick rehire to a more than equivalent position and the parties’ consequent stipulation as to lack of economic damages.  While, in a mainland mediation, such fortuity might predictably jeopardize potential resolution at any significant figure, regardless of other circumstances and potential damages, in this instance, in which the parties continued to work in the same industry on the same island and the employer acknowledged the employee’s technical expertise, the employer was willing to entertain the possibility of adverse liability finding with attendant personal injury damages and attorneys fees, hence, “extended itself” to its former mechanic sufficiently for the mechanic to deem himself “made whole.”

In each of the foregoing cases the parties “took a risk” and traversed beyond the terminus of “rote” responses to regard opposing parties as individuals and community members entitled to respect and, by virtue of such “extension,” were enabled to reach resolution. Such “regard,” also manifest  in the “ohana” concept of extended family which undergirds the practice of “aloha,” is essential to the transformative mediation process for which  practitioners strive.  “Ho’oponopono” (“to put to rights”) is the Hawaiian term for such a healing practice of reconciliation.