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Working Party on Mediation

Terms of reference

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

Membership

Chairman: The Hon Mr Justice Johnson LAM PJ
 
Members: The Hon Mr Justice Barnabas FUNG, GBS
 Judge of the Court of First Instance of the High Court
 
 The Hon Madam Justice B CHU
 Judge of the Court of First Instance of the High Court
 
 The Hon Madam Justice K Y WONG
 Judge of the Court of First Instance of the High Court
 
 Mr KWANG Cheok-weung, Simon
 Registrar, High Court
 
 His Honour Judge Justin KO
 Chief District Judge
 
 His Honour Judge C K CHAN
 Principal Family Court Judge
 
 Her Honour Judge Elaine LIU
 Family Court Judge
 
 Mr Simon LUI
 Principal Adjudicator
 
 Master Bryan LUNG
 Family Court
 
 Mr Clifford TAVARES
 Department of Justice
 
 Ms Juliana CHAN, JP
 Legal Aid Department
 
 Mr HEW Yang-wahn
 
 Mrs Cecilia WONG
 
 Ms Sylvia SIU, JP
 
 Professor Leung Hing-fung
 
In Attendance:   Deputy Judiciary Administrator (Operations) (Ms Karyn CHAN)
 
 Chief Judicial Executive(Mediation Affairs) (Ms April LAM)
 
Secretary: Mediation Co-ordinator (Ms Emily HO)

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.

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. PD31 has been updated in November 2014.

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.

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. In terms of that scheme, a Building Management Mediation Co-ordinator's Office was set up within the Lands Tribunal to facilitate the parties seeking mediation service. 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.

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.

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.

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.

Integrated Mediation Office

The Judiciary has set up three offices, namely Integrated Mediation Office, Integrated Mediation Office (West Kowloon) and Building Management Mediation Co-ordinator's Office, 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 Integrated Mediation Office in Wanchai Tower starting 2 May 2018 aims to assist the parties to understand the nature of mediation and how it will help the litigants resolve their dispute. It serves the parties/litigants in court and facilitates them to seek both general and family mediation from the professional bodies or private practitioners outside the Judiciary.

The Integrated Mediation Office answers enquiries and provides information on court-related mediation on all civil cases, including proceedings on matrimonial/family matters and building management.

Integrated Mediation Office (West Kowloon)

As an extension of the Judiciary's Integrated Mediation Office located in the Wanchai Tower, the Integrated Mediation Office (West Kowloon) (IMO(WK)) is established to facilitate the greater use of mediation service for dispute settlement primarily for cases in the Small Claims Tribunal.

Since November 2018, the Small Claims Tribunal had been referring suitable cases to the West Kowloon Mediation Centre on the same site as the IMO(WK), under a pilot scheme supervised by the Department of Justice, to facilitate parties’ consideration of using mediation to resolve their disputes. The pilot scheme ended on 30 June 2022. The Judiciary has taken over the premises from early July 2022 to continue facilitating the greater use of mediation through establishing the IMO(WK).

Joint Mediation Helpline Office Ltd

To tie in 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.

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.

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.

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 existing Practice Direction on Family Mediation, an updated Practice Direction on Family Mediation was promulgated in May 2012. The Working Party welcomed and supported the updated 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 to explore the possibility of mediation would be specified and the procedure for mediation in the Matrimonial Proceedings and the Family Proceedings would be set out in more details. An updated pamphlet on Family Mediation was issued to introduce mediation to the litigants at the same time.

Family Mediation Supervision Scheme

The Judiciary has been promoting and facilitating the use of family mediation since 2000. The concept of family mediation has increasingly gained acceptance by the community as a non-adversarial family dispute resolution process. The demand for family mediation is increasing. In view of the situation, HKMAAL and IMO have jointly launched the Family Mediation Supervision Scheme ("the Supervision Scheme") to enhance the accreditation of family mediators. Given the encouraging results in the first two phases of the scheme in pilot mode, the Supervision Scheme has been normalized since January 2022 with a view to raising the standard and facilitating the development of family mediation profession in Hong Kong.

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.

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. A research team was commissioned to conduct a study and compile a report on the said Pilot Scheme.

Mediation Training for Judges and Judicial Officers

The Working Party has monitored the training for judicial officers in respect of mediation. As at May 2019, 54 Judges and Judicial Officers have received relevant accredited mediation training via the arrangement of the Judiciary.

Mediation Training for Supporting Staff

The Working Party has also monitored the training on mediation provided for supporting staff of the Judiciary. Various induction and revision courses covering the topic Civil Justice Reform, including Mediation, are conducted to new comers and supporting staff of the Judiciary on a regular basis.