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Working Party on Mediation

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Terms of reference
Membership
Background
Civil Justice Reform
Mediation in Construction Cases
Mediation in Building Management Cases
Mediation in Companies Cases
Mediation for Personal Injuries Cases
Pledges by the legal profession
Mediation Information Office
Joint Mediation Helpline Office Ltd
Mediation for Land Compulsory Sale Cases
Report on Mediation
New Practice Direction 15.10 on Family Mediation
Mediation in Probate and Administration of Estate Proceedings
Sponsorship for Family Mediation services
Mediation Training for Judges and Judicial Officers
Mediation Training for Supporting Staff

 

Terms of reference

To consider how consensual mediation of civil disputes in the Court of First Instance, the District Court and the Lands Tribunal may be facilitated, having regard to its economic and social benefits and taking into account developments in mediation in other common law jurisdictions.

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Membership

Chairman:  
The Hon Mr Justice Lam VP  
   
Members:  
The Hon Mr Justice Fung  
The Hon Mr Justice Au  
The Hon Madam Justice B. Chu  
The Hon Mr Justice Lok  
Mr Registrar Lung Kim-wan  
His Honour Judge Ko  
Mr Simon Lee, Department of Justice  
Mr Chris Chong, Legal Aid Department  
Ms Elaine Liu  
Mrs Cecilia Wong  
Mr Chan Bing-woon, SBS, JP  
   
In attendance:  
Mrs Erika Hui Lam Yin-ming  
Deputy Judiciary Administrator (Operations)  
   
Ms April Lam  
Senior Mediation Affairs Officer  
   
Secretary:  
Ms Eva Kong  
Mediation Affairs Officer  

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Background

The Working Party on Mediation was established in January 2007. Its terms of reference are to consider how consensual mediation of civil disputes may be facilitated in various levels of courts.

At the Legal Year Opening of 2007, the Chief Justice gave the following guidance for the operation of this Working Party,

“First, it is concerned with the facilitation of consensual mediation, that is, where the parties by their own choice agree to engage in mediation. Secondly, where the parties agree to try mediation, it will be undertaken by a mediator outside the Judiciary selected by the parties. Thirdly, since mediation is still developing in Hong Kong, it is appropriate for the Working Party to adopt a gradual approach.”

It was agreed at the first meeting of the Working Party on Mediation that the Working Party would focus on measures to be taken within the Judiciary to promote and facilitate mediation in the resolution of civil disputes. Since then, the Working Party has been holding regular meetings.

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Civil Justice Reform

The Civil Justice Reform was implemented starting 2 April 2009. One of the Practice Directions introduced, ie, PD31 on Mediation, laid down the procedures for encouraging parties to resolve their disputes by alternative dispute resolution in civil proceedings in the Court of First Instance and the District Court. The Practice Direction was discussed in the Working Party and after taking into consideration the views of the legal and mediation professional bodies, the Chief Justice agreed to defer the implementation date of this Practice Direction till 1 January 2010.

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Mediation in Construction Cases

In September 2006, the Judiciary introduced a two-year pilot scheme for mediation of construction disputes. After the conclusion of the pilot scheme in April 2009, the Working Party reviewed the results of the pilot scheme and subsequently the Judiciary decided to make the pilot scheme permanent by Practice Direction 6.1. Notably, the Practice Direction provides that an “adverse costs order” may be made against parties who unreasonably refused or failed to attempt mediation.

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Mediation in Building Management Cases

In January 2008, the Judiciary introduced a pilot scheme to promote mediation in building management cases in the Lands Tribunal. The Working Party reviewed the result of the pilot scheme. In May 2009, the Judiciary decided to adopt the measures in the pilot scheme as the standard practice with effect from 1 July 2009 by issuing President’s Direction LTPD: BM No. 1/2009.

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Mediation in Companies Cases

In October 2008, the Judiciary introduced a one-year pilot scheme for voluntary mediation in petitions presented under sections 168A and petitions for winding up on the just and equitable ground under 177(1)(f) of the Companies Ordinance (Cap.32). On conclusion of the pilot scheme, the Working Party was satisfied with the result. A new Practice Direction was introduced to make the pilot scheme a permanent feature.

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Mediation for Personal Injuries Cases

The Working Party explored the facilitation of mediation for personal injuries cases. A sub-group on Personal Injuries litigation was set up in February 2008. A study on the New Insurance Mediation Pilot Scheme (NIMPS) administrated by the Mediation Council for Employee Compensation Cases was carried out.

The NIMPS was first launched at a stage before Legal Aid was extended to mediation. In November 2011, the Hong Kong Federation of Insurers and the Hong Kong Mediation Council jointly marked the satisfactory completion of the NIMPS which had successfully achieved the purpose of settling disputes in resolving employees’ compensation and work related personal injury claims. The completion of the NIMPS has marked a good start for the development of mediation.

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Pledges by the legal profession

Under the guidance of the Working Party, the two legal professions have included in their code of practices a pledge for their members to advise clients on the option of mediation in appropriate cases.

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Mediation Information Office

The Judiciary has set up two Mediation Co-ordinators’ Offices, one for Family Cases and one for Building Management Cases in the Lands Tribunal, to provide information and enquiry services for the public on mediation matters in specific areas.

To provide a focal point of enquiry of mediation in all court levels, the Judiciary set up a Mediation Information Office in the High Court starting 4 January 2010 to tie in with the implementation of Practice Direction 31 on Mediation. While the existing Mediation Coordinators’ Offices would continue to serve the court users in family and building management cases, the Mediation Information Office would hold information sessions regularly and introduce to the other court users what mediation is. Members of the public would be advised of the roles of mediators and how mediation sessions would be conducted. However, unlike the Mediation Coordinators’ Offices, the Mediation Information Office would not play the role of co-ordinator between litigants and mediators. It is believed that such a role should be undertaken by the mediation profession. To facilitate that, the Judiciary supports the idea of setting up of a Joint Mediation Helpline Office Ltd in the High Court Building.

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Joint Mediation Helpline Office Ltd

To prepare for the implementation of Practice Direction 31 on Mediation, the idea of setting up a Joint Mediation Helpline Office Ltd (“JMHO”) by the professional bodies was discussed under the guidance of the Working Party. JMHO is a non-profit-making organization and has been in operation since 12 July 2010. It aims to promote the use of mediation as a means of dispute resolution in Hong Kong. It provides one-stop mediation referral services for parties in need of mediation services, particularly for parties in litigation.

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Mediation for Land Compulsory Sale Cases

To encourage parties involved in cases under the Land (Compulsory Sale for Redevelopment) Ordinance (Cap 545) to consider mediation, the Working Party supported and welcomed the issuing of President’s Direction LTPD: CS No.1/2011 on 15 February 2011. The Lands Tribunal will take into account whether the parties have engaged in mediation when hearing applications for compulsory sale and in exercising its discretion on costs under the Ordinance.

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Report on Mediation

To maintain a clearer picture as to the time and costs required for mediation, the Working Party decided that empirical data should be collated from cases in court where mediation had taken place. Starting in 2010, represented parties who intend to seek mediation for the resolution of disputes are directed by court to report the result of mediation as per a form (the “Report on Mediation”) as soon as practicable after mediation.

To reduce the motive to conduct sham mediation and to facilitate the exercise of case management power of the court, apart from reporting the time and costs spent on mediation, the represented parties are now required to provide information on the stages of mediation completed, date of appointing mediator, date of completion of mediation and name of the mediator (optional), in the Report on Mediation. The Working Party would continue to monitor the situation closely and consider taking appropriate action if necessary.

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New Practice Direction 15.10 on Family Mediation

In order to harmonize the measures adopted to encourage parties to engage in mediation in civil proceedings under PD31 with the current Practice Direction on Family Mediation, a new Practice Direction on Family Mediation was promulgated in May 2012. The Working Party welcomed and supported the New PD15.10 incorporating the spirit introduced by the Civil Justice Reform and the Court’s power to manage practical issues emerged in the mediation process as those in civil proceedings under PD31. With such modification, the duties of the parties and their legal representatives would be specified and the procedure for mediation in the Matrimonial Proceedings and the Family Proceedings would be set out in more details. A new pamphlet on Family Mediation was issued to introduce mediation to the litigants at the same time.

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Mediation in Probate and Administration of Estate Proceedings

In probate disputes, parties are usually immediate family members or are known or related to the deceased person. The Working Party is glad to note that new Practice Direction on Probate and Administration of Estate Proceedings, which took effect in August 2012, provides the procedures to encourage the parties to attempt mediation as a possible cost-effective means of resolving their disputes as well as for maintaining family harmony.

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Sponsorship for Family Mediation services

The Working Party noted that some non-governmental organizations (NGOs) had expressed concerns about the lack of funding to provide mediation service to family disputes. The Home Affairs Bureau (HAB) was invited to consider providing resources to NGOs for family mediation service from the family perspective. As family mediation is an effective way to resolve family disputes and help family members to alleviate the adverse effects arising from litigation, HAB considers it worthwhile to support family mediation, so that the community as a whole will benefit from a wider adoption of mediation service. In this regard, a two-year pilot scheme was set up in 2012 under which the Family Council, through the HAB, providing direct sponsorship to interested organizations for provision of family mediation service.

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Mediation Training for Judges and Judicial Officers

The Working Party has monitored the training for judicial officers in respect of mediation. As at 15 February 2013, 43 Judges and Judicial Officers have become accredited mediators.

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Mediation Training for Supporting Staff

The Working Party has also monitored the training on mediation provided for supporting staff of the Judiciary. A workshop on mediation was conducted on 12 November 2009 by the Centre for Effective Dispute Resolution (CEDR). A general introduction on mediation and Practice Direction 31 conducted by The Hon Mr Justice Lam (as he then was) was held on 10 December 2009. Various induction and revision courses covering the topic Civil Justice Reform, including Mediation, were conducted to new comers and supporting staff of the Judiciary in due course.

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