Mediation

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.

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,

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.

The Civil Justice Reform was implemented starting 2 April 2009. One Practice Direction, that of Practice Direction 31 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.

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.

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.

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 reviewed the result. A new Practice Direction was introduced to make the pilot scheme a permanent feature.

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 administrated by the Mediation Council for Employee Compensation Cases is underway.

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.

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. The Working Party discussed and welcomed the establishment of the Mediation Information Office.

To prepare for the implementation of Practice Direction 31 on Mediation, the idea of setting up a Joint Mediation Helpline Office Ltd by the professional bodies was discussed under the guidance of the Working Party. It is proposed that the Office will provide the necessary information to the public and help them to contact the mediation service providers for mediators. Details on the operation of the Office are being worked out among the professional bodies.

The Working Party monitored the training for judicial officers in respect of mediation. As at 1 November 2009, 21 Judges and Judicial Officers have become accredited mediators and 11 more attended training courses that was held in October and November 2009.

The Working Party 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 was held on 10 December 2009.