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FAQs on Mediation < About Mediation

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What is Mediation?
Why consider mediation? What are the advantages of mediation?
How much will mediation cost?
How long does mediation take?
What cases are suitable for mediation and what are not?
How is mediation different from arbitration and litigation?
How can the parties be sure that mediation will produce a fair result?
How does mediation apply in Land Compulsory Sales Cases?
If I choose mediation, will I still need to appoint a lawyer?
How can a mediation organization help me?
How can I appoint a Mediator?
Who are the Accredited Mediators?
How does mediation work in civil cases?
What do I need to prepare before mediation?
Do I have to go to mediation?
What if the parties don't settle?
Confidentiality

 

Q1 What is Mediation?
A1
What is Mediation?
Mediation is a voluntary process in which a trained and impartial third person, the mediator, helps the parties in dispute to reach an amicable settlement that is responsive to their needs and acceptable to all sides.

During the process, each party to the dispute has a chance to put his/her case and to hear what the other side has to say. The mediator's job is not to make a decision for the parties, but to assist the parties to explore the strengths and weaknesses of their own cases and to identify possible solutions, so as to facilitate them to reach a settlement agreement. The mediator does not decide who is right or wrong and has no authority to impose a settlement on the parties, the decision-making power rests in the hands of them. The mediator is skilled in unlocking negotiations that have become deadlocked and in keeping everyone focused on finding a solution.

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Q2 Why consider mediation? What are the advantages of mediation?
A2.a
Why consider mediation?
  • Parties can avoid suffering from the anxiety and disturbances to their normal life which are the natural consequences of an adversarial litigation in court.

  • Parties can avoid the risk of losing the litigation.

  • Parties can avoid confrontation with the other as an amicable settlement can be achieved by mediation.

  • Parties can save time and money in not having to contest matters in court with an early settlement as litigation is a much longer process than mediation.

  • Parties can make their own decisions and reach agreements with which the parties may be more willing and ready to comply.

  • The settlement terms can be kept private and confidential.

  • Mediation can result in terms of settlement of greater flexibility and in more practical ways going beyond the legal remedies that the court is empowered to grant. The solutions developed by the parties can be unique to the dispute and are ones that the court cannot provide.

  • Mediation can help maintain a continuing relationship with the other party or parties involved in the dispute and may improve that relationship.

  • The chance of appeal is minimal, in contrast to litigation.

There are other advantages over going to court:

  • If the parties' dispute involves undisclosed issues, mediation, unlike a structured court case, offers the opportunity and flexibility to search them out.

  • Unlike the formal and tensed atmosphere in the court, mediation is conducted in a more relaxed and informal manner under which parties tend to be more open to compromise.
A2.b
What are the advantages of mediation?
Especially for Family Mediation:
  • In particular, family mediation can improve the communication between the parties.

  • Family mediation can enhance the parties' continuing relationship as parents and help them work better together as parents in the long-run.

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Q3 How much will mediation cost?
A3
How much will mediation cost?
The parties will have to pay if they receive the mediation service from a private mediator. The parties should talk to their legal adviser about the likely costs of mediation, and how this would mean when compared with the cost of litigation. In most cases, mediation is much cheaper and faster than litigation.

Charges in mediation mainly include the mediator's fees for his/her time and other disbursements, for example, room charges. It is usual for the parties to agree before the start of the mediation that they will be responsible to pay the fees in equal shares. If a party decides to instruct lawyers or other professional persons to assist him/her in the mediation, the party himself/herself will be responsible for any such charges.

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Q4 How long does mediation take?
A4
How long does mediation take?
It depends on:
  • the complexity and number of issues the parties need to settle;
  • the degree of the parties' cooperation and readiness to participate in the mediation sessions.

If issues are not complicated and the process goes smoothly, it may only take one mediation session lasting for a day, or 2 to 3 mediation sessions lasting for about a few hours each, for the parties to reach agreement.

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Q5 What cases are suitable for mediation and what are not?
A5
What cases are suitable for mediation and what are not?
Mediation is suitable for nearly all kinds of disputes.

Mediation is suitable in many cases although it may not be suitable for every case. The interested parties may be invited to attend a preliminary meeting in which the mediator will assess whether mediation is suitable for their particular circumstances, or their legal adviser may be able to help them decide.

For cases where there is a genuine dispute requiring the court to give a declaratory relief, the parties may need to go for litigation.

Family disputes involving child abuse, domestic violence, etc. are not suitable for mediation as a party's decision to enter into a settlement may be unduly influenced.

In a family dispute, where one or more of the parties are in a severely disturbed emotional or psychological state, such that they cannot represent themselves or focus on the needs of their children, is not suitable for mediation.

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Q6 How is mediation different from arbitration and litigation?
A6
How is mediation different from arbitration and litigation?
Arbitration

  • Arbitration is a legal process which is the resolution of disputes outside the courts. It results in an award imposed by the arbitrator or arbitrators. For an arbitration to take place, the disputing parties must agree to take their dispute to arbitration. If parties have agreed to arbitration, they will generally have to go to arbitration rather than court as the courts will normally refuse to hear their case by staying it to force the reluctant party to honour their agreement to arbitrate.

  • Arbitration awards are final and binding on the parties and can only be challenged in very exceptional circumstances. An award has a status very similar to a court judgment and is enforceable in a like manner. Arbitration awards made in Hong Kong are enforceable through the courts of most of the countries involving in international trade.

  • Arbitration is a form of binding dispute resolution, equivalent to litigation in the courts, and entirely distinct from the various forms of non-binding dispute resolution, such as negotiation, mediation, or non-binding determinations by experts.
Litigation
  • In the absence of an arbitration agreement or other consensual means of dispute resolution, the parties may commence proceedings in the courts.

  • The judicial system in Hong Kong is adversarial. The parties should present their case to the court for its determination. The judge will act as an umpire and make decisions after considering the evidence and hearing the arguments from the parties. The losing party will normally be ordered to pay the costs to the winning party. The costs are the expenses that the winning party has to spend on the preparation and hearing of the matter, including the expenses for the solicitors and barristers representing them. The amount of the costs can be substantial, depending on factors including the complexity of the case, the work required for preparation of hearing and the length of the hearing.

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Q7 How can the parties be sure that mediation will produce a fair result?
A7
How can the parties be sure that mediation will produce a fair result?
The work of a mediator is not to make a decision for the parties. The mediator helps the parties think beyond the present situation for possible solutions to the dispute, thus enabling the parties to find the path to dispute resolution that suits them best. The parties will work to come out a solution to their own dispute. Unless they totally agree, there will be no final resolution and nobody can force them to sign any agreement.

In a mediation session, the mediator will help the parties to:
  • Discuss and decide what matters are in dispute;
  • Explore each party's real needs and interests;
  • Expand settlement options and assess the most suitable solution;
  • Draw up the settlement agreement in detail, setting out how the parties have agreed to resolve each matter in dispute.

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Q8 How does mediation apply in Land Compulsory Sales Cases?
A8
How does mediation apply in Land Compulsory Sales Cases?
For FAQs on Mediation in related to Land Compulsory Sale Cases, please click here.

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Q9 If I choose mediation, will I still need to appoint a lawyer?
A9
If I choose mediation, will I still need to appoint a lawyer?
In general, you do not need a lawyer to participate in mediation. However, if you consider consulting a lawyer could facilitate you better understand the law that applies to your disputes and prepare for mediation, you may do so. Before an agreement is reached in mediation, some people may seek independent legal advice. As a general rule, mediators, even if they are qualified lawyers, will not give legal advice during mediation to avoid conflict of interest.

If you need legal advice, you are suggested to make your own arrangements in advance. The mediator is an independent third party and must remain impartial and neutral. In the process of discussions with the mediator, no legal advice should be expected to be given from him/her.

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Q10 How can a mediation organization help me?
A10
How can a mediation organization help me?
Various organizations in Hong Kong maintain their own list of mediators covering many areas and professional disciplines appropriate to the dispute in question. Parties can select from the lists and agree on a suitable mediator. In case of difficulty, they can consider contacting a mediation provider/organization for assistance.

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Q11 How can I appoint a Mediator?
A11
How can I appoint a Mediator?
Various organizations in Hong Kong maintain their own list of mediators. Each organization has its own requirements for placing a mediator on its list, such as requirements covering knowledge and skills in negotiation and dispute resolution. Mediators may also be required to abide by an Ethical and Professional Code of Practice of their respective organizations. The parties can select from the lists and agree on a suitable mediator. Your lawyer may help you to select a mediator or you may approach the Mediation Information Office if you need information as to where to find a mediator/mediation body to resolve your disputes.

Mediators can be lawyers, medical professionals, social workers, management professionals, engineers and other trained professionals. You should appoint a mutually agreed mediator since this individual is going to help communicate on your differences.

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Q12 Who are the Accredited Mediators?
A12
Who are the Accredited Mediators?
Mediators usually come from various professional backgrounds and have undergone training in mediation skills and techniques. They have to meet accreditation requirements covering knowledge and skills in negotiation and dispute resolution. They are also required to abide by a Code of Practice.  The accreditation bodies will handle the complaints against the mediators.

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Q13 How does mediation work in civil cases?
A13
How does mediation work in civil cases?
The mediator may conduct a pre-mediation individual interview with each party outside a court setting, usually in a private office. Then the mediator starts the mediation with a joint session to explain the mediation process and ground rules. In the joint session the parties will make opening presentations to share their views on the disputes and clearly define the issues.

Private meetings/caucusing: if agreement is unable to be reached at the joint session, the mediator will usually suggest the parties to retire to separate rooms and he/she will pass between parties assisting them to assess the feasibility of their negotiation terms. All matters discussed with the mediator at private meetings are confidential, and will not be disclosed by the mediator to the other party without explicit consent.

Throughout the process the mediator helps the parties evaluate the case, identify their fundamental interests, explore and consider possible consequences if the dispute is not settled, develop alternatives to deal with various issues in the dispute, and formulate proposals that would help move the process towards mutual agreement.

The parties may terminate the mediation sessions anytime during the process. If agreement is reached, the parties will sign the agreement which will be binding on the parties. Under the circumstance that an agreement cannot be reached but the outlook is positive, the mediator may take the approach of suggesting parties to take some time to think over the outcome of the meeting. After that the mediator may contact them regarding unresolved matters. Even an agreement is failed to be reached by the parties at the end of the meeting, it can still consider to be helpful as it will contribute to the understanding of the point of view of each party.

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Q14 What do I need to prepare before mediation?
A14
What do I need to prepare before mediation?
  • Familiarize yourself with the facts of the case;
  • Consider in advance various acceptable settlement options;
  • Seek prior legal advice if necessary;
  • Most importantly, arrange to have individuals whose decisions are necessary for resolution present for the entire mediation.

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Q15 Do I have to go to mediation?
A15
Do I have to go to mediation?
No - the mediation process is entirely voluntary, however, if the dispute is or will be subject to Court proceedings, the Court will take into account all relevant circumstances, including whether a party has unreasonably refused to take part in mediation, in exercising its discretion to award costs. You may face an enhanced costs order if the Court finds that you refused an offer to mediate unreasonably.

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Q16 What if the parties don't settle?
A16
What if the parties don't settle?
If the parties could not reach any agreement, they may consider bringing the issue/case to Court and going through the litigation process.

Both parties must appreciate that all discussions during a mediation session is on a privileged and without prejudice basis – this means that nothing discussed can be used as evidence in future legal proceedings. (See also the answer to Question relating to Confidentiality below)

The parties will not be at a disadvantage after trying mediation which turns out to be unsuccessful. They may find out that the issues are clearer as a result.

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Q17 Confidentiality
A17
Confidentiality
According to the Mediation Ordinance, a person must not disclose a mediation communication* except under specified circumstances, for example, with the consent of all parties and the mediator or where there are reasonable grounds to believe that the disclosure is necessary to prevent danger of injury to a person or of serious harm to the well being of a child, or with the leave of the court.

Mediation is considered to be a private and confidential process. Firstly, the mediation process must be remained confidential at all times in that no third party is to be privy to the proceedings other than the parties and mediator. Secondly, under no circumstance should any matters discussed in private sessions be disclosed to the other party by the mediator without permission.


* Mediation communication means anything said or done, any document prepared, and any information provided for the purpose of or in the course of mediation. See Sec 2 and 8 of the Mediation Ordinance, Cap 620 for details.

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Disclaimer

This publication is for general reference only and should not be treated as a complete or authoritative statement of law or court practice. Whilst every effort has been made to ensure that the information provided is accurate, it does not constitute legal or other professional advice. The Judiciary cannot be held responsible for the content of this publication.

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