(a) The mediation of a dispute between a unit owner and the board, unit owner and the managing agent, board members and the board, or directors and managing agents and the board shall be mandatory upon written request to the other party when:

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Terms Used In Hawaii Revised Statutes 514B-161

  • Association: means the unit owners' association organized under section 514B-102 or under prior condominium property regime statutes. See Hawaii Revised Statutes 514B-3
  • Condominium: means real estate, portions of which are designated for separate ownership and the remainder of which is designated for common ownership solely by the owners of those portions. See Hawaii Revised Statutes 514B-3
  • Declaration: means any instrument, however denominated, that creates a condominium, including any amendments to the instrument. See Hawaii Revised Statutes 514B-3
  • Developer: means a person who undertakes to develop a real estate condominium project, including a person who succeeds to the interest of the developer by acquiring a controlling interest in the developer or in the project. See Hawaii Revised Statutes 514B-3
  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Managing agent: means any person retained, as an independent contractor, for the purpose of managing the operation of the property. See Hawaii Revised Statutes 514B-3
  • Person: means an individual, firm, corporation, partnership, association, trust, or other legal entity, or any combination thereof. See Hawaii Revised Statutes 514B-3
  • Property: includes parcels with or without upper or lower boundaries, and spaces that may be filled with air or water. See Hawaii Revised Statutes 514B-3
  • Unit: means a physical or spatial portion of the condominium designated for separate ownership or occupancy, the boundaries of which are described in the declaration or pursuant to § 514B-35, with an exit to a public road or to a common element leading to a public road. See Hawaii Revised Statutes 514B-3
  • Unit owner: means the person owning, or the persons owning jointly or in common, a unit and its appurtenant common interest; provided that to such extent and for such purposes as provided by recorded lease, including the exercise of voting rights, a lessee of a unit shall be deemed to be the unit owner. See Hawaii Revised Statutes 514B-3
(1) The dispute involves the interpretation or enforcement of the association‘s declaration, bylaws, or house rules;
(2) The dispute falls outside the scope of subsection (b);
(3) The parties have not already mediated the same or a substantially similar dispute; and
(4) An action or an arbitration concerning the dispute has not been commenced.
(b) The mediation of a dispute between a unit owner and the board, unit owner and the managing agent, board members and the board, or directors and managing agents and the board shall not be mandatory when the dispute involves:

(1) Threatened property damage or the health or safety of unit owners or any other person;
(2) Assessments;
(3) Personal injury claims; or
(4) Matters that would affect the availability of any coverage pursuant to an insurance policy obtained by or on behalf of an association.
(c) If evaluative mediation is requested in writing by one of the parties pursuant to subsection (a), the other party cannot choose to do facilitative mediation instead, and any attempt to do so shall be treated as a rejection to mediate.
(d) A unit owner or an association may apply to the circuit court in the judicial circuit where the condominium is located for an order compelling mediation only when:

(1) Mediation of the dispute is mandatory pursuant to subsection (a);
(2) A written request for mediation has been delivered to and received by the other party; and
(3) The parties have not agreed to a mediator and a mediation date within forty-five days after a party receives a written request for mediation.
(e) Any application made to the circuit court pursuant to subsection (d) shall be made and heard in a summary manner and in accordance with procedures for the making and hearing of motions. The prevailing party shall be awarded its attorneys’ fees and costs in an amount not to exceed $1,500.
(f) Each party to a mediation shall bear the attorneys’ fees, costs, and other expenses of preparing for and participating in mediation incurred by the party, unless otherwise specified in:

(1) A written agreement providing otherwise that is signed by the parties;
(2) An order of a court in connection with the final disposition of a claim that was submitted to mediation;
(3) An award of an arbitrator in connection with the final disposition of a claim that was submitted to mediation; or
(4) An order of the circuit court in connection with compelled mediation in accordance with subsection (e).
(g) Any individual mediation supported with funds from the condominium education trust fund pursuant to § 514B-71:

(1) Shall include a fee of $375 to be paid by each party to the mediator;
(2) Shall receive no more from the fund than is appropriate under the circumstances, and in no event more than $3,000 total;
(3) May include issues and parties in addition to those identified in subsection (a); provided that a unit owner or a developer and board are parties to the mediation at all times and the unit owner or developer and the board mutually consent in writing to the addition of the issues and parties; and
(4) May include an evaluation by the mediator of any claims presented during the mediation.
(h) A court or an arbitrator with jurisdiction may consider a timely request to stay any action or proceeding concerning a dispute that would be subject to mediation pursuant to subsection (a) in the absence of the action or proceeding, and refer the matter to mediation; provided that:

(1) The court or arbitrator determines that the request is made in good faith and a stay would not be prejudicial to any party; and
(2) No stay shall exceed a period of ninety days.
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