Wednesday, February 3, 2010
Mediation in Hong Kong
December 10, 2009
By Alfred Ip, Partner at OLN and CEDR Accredited Mediator
From 1st January 2010, the court will require parties to civil proceedings to consider using mediation as an alternate means to settle their dispute. The court will require the parties to justify their decision in case they refuse to attempt mediation, failing which adverse costs order may be made against that party, irrespective of the outcome of the litigation.
The court also put the burden on the parties’ legal representatives to advise their clients properly on mediation, as early as possible. In fact, good lawyers in dispute resolution should be in a position to advise their clients of various ways to resolve a dispute. Civil proceedings should not be the only way to resolve disputes among parties in the modern era.
Mediation provides a platform for parties in dispute to discuss their issues in dispute in the presence of a trained and impartial mediator. The role of the mediator is to direct the parties to look at the future, and assist the parties in identifying their needs, in order to explore the alternatives available to the parties in resolving the disputes.
Mediation trumps over court proceedings in many ways:
1. Mediation is less expensive compared with litigation, because of the time involved.
2. The process of mediation is much quicker compared with court proceedings. Mediation can take place within weeks, while court proceedings often go on for years.
3. Some of the disputes and grievances arise out of the parties’ misunderstandings. Through dialogue, parties can be in a better position to understand their respective points of view, and the parties’ ongoing relationship can be saved through clearing such misunderstandings, which is less likely to be achieved through court proceedings.
4. Any resolution made at the end of the mediation would be made by the parties themselves, instead of a third party’s decision imposing on the same.
5. As the outcome is controlled by the parties, parties can tailor their agreement according to their wishes or their situation, and achieve an outcome which may not be achievable through court proceedings.
6. Parties are less likely to be aggrieved by the outcome of the mediation, which is agreed by the parties themselves. The problem of prolonged appeal process would not arise.
7. Parties who mediate their differences are able to attend to the fine details of implementation. Negotiated or mediated agreements can include specially tailored procedures for how the decisions will be carried out. This fact often enhances the likelihood that parties will actually comply with the terms of the settlement.
8. The mediation process, and the end result of the same, is private and confidential, whereas a judgment in court proceedings is often a public record. What the parties discussed throughout the mediation process cannot be used in any court proceedings, thus the parties are at liberty to voice their standpoint freely.
The Law Society of Hong Kong and the Hong Kong International Arbitration Centre both maintain a panel of mediators for the parties to choose, while the Centre for Dispute Resolution is the most influential non-profit mediation body.