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A century ago, Lord Hewart, former Lord Chief Justice of England, in Rex v. Sussex Justices, observed, “Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”

Since then, even the appearance of something improper has been grounds to set aside a ruling, decision, or order of a court or quasi-judiciary authority.

Earlier this year, a mediation center that provides condominium-owner-paid Condominium Education Trust Fund-subsidized mediation services provided an instructional session to mediators by Zoom.

Superficially, there was nothing unusual. However, a few of those mediators reported — independently of each other — that the instructor spoke disparagingly of condo owners, as if to inculcate a prejudice against condo owners.

As Lord Hewart noted, such a bias should not exist for any just or fair dispute resolution process.

It is hoped that the mediators’ class was recorded and is reviewed by the DCCA Real Estate Commission to verify the validity of these reports because the DCCA REC has a contract with this mediation center and received my report of this alleged transgression.

Uncovering such a grievous coaching is important because mediation is mandated in many cases under “condo law,” . The alleged indoctrination may explain why condominium owners have repeatedly claimed that their mediations were not as successful as lawmakers had envisioned, DCCA Real Estate Commission had purported, and as these condominium owners had hoped.

For many years I testified to the Legislature that “mediations do not work” and supported those claims with copies of mediation cases summarized in each quarterly Hawaii Condominium Bulletin.

Tallies of the hundreds of mediation cases reported in the Hawaii Condominium Bulletin since 1991 revealed that most mediation cases (nearly 80% since 2015) were initiated by condo owners against their association (or their boards). And only about one in every four reported cases were “settled to agreement.”

One of four is not a metric of a successful anything. And this insufficient rate is especially alarming when juxtaposed against the sizable portion of Hawaii’s housing that are condominiums, a quantity that will only increase as more affordable homes in higher density configurations are built.

The testimonies to the Legislature and the DCCA have upset many, especially those who participate in mediations as mediators or as legal counsel.

However, rather than denouncing these assertions or denigrating the condo-owner-participants of mediation, the standards of the mediation process should be improved, and that improvement starts with the instruction of mediators who are supposed to be neutral parties:

“A mediator is a neutral third party that leads a mediation between parties as a form of alternative dispute resolution. A mediator’s goal is to encourage collaboration between the parties and guide them to a settlement through the mediation process.” (Source: Cornell Law School )

The DCCA Real Estate Commission should be aware of biases that nullify their and lawmakers’ claims that the mediation process offers a fair means of dispute resolution for condo owners against their boards or management. Mediation centers should emphasize that prejudices have no place in just dispute resolution.

Additionally, the failure of mediators to disclose their prior relationships or conflicts of interest has created distrust in the mediation process. A mediator suggested that attorneys who practiced in condominium or association law should not serve as mediators as it was this mediator’s observation that the condominium or association attorneys were “always in favor of the condo (association or board)” and were not mediating based on “the issue at hand.”

The mediation process should be fair, neutral, and just, as intended, and not harm the very owners who subsidize these programs and deserve justice.

Or should the owners who suffered financial expenses and other hardships through tainted mediation processes under the oversight of biased mediators have recourse?

It is no wonder that we condo owners’ advocates seek a condominium or homeowners’ associations ombudsman’s office.