Pre-Trial Mediation in Mainland China and Hong Kong: Rationales, Regulations and Ramifications
(2013) 32 Civil Justice Quarterly 385-407
University of Hong Kong Faculty of Law Research Paper No. 2013/011
11 Pages Posted: 15 Mar 2013 Last revised: 20 Jan 2014
Date Written: February 6, 2013
Abstract
What happens in mediation is generally unknown to third parties due to the private nature of the process and confidentiality agreements. Members of the public and business leaders will be not in the least concerned if mediation is just about settlement. The pro-mediation policies in mainland China for two millennia and in Hong Kong ten years ago raise hard questions about civil justice, particularly in light of China’s economic growth and participation in international trade. Who needs mediation and for what purposes? What is the relationship between mediation and litigation? To what extent is pre-trial mediation voluntary? How is pre-trial mediation commenced, conducted and concluded? What, if anything, are in place to safeguard the right of access to the courts irrespective of the outcome of mediation? These questions are not only about how individuals terminate disputes privately. They are also about the processes, institutions and regulatory framework for just enforcement of civil rights. They are questions about civil justice. The article focuses on judicial mediation in mainland China and court-related mediation in Hong Kong and evaluates their impact on the civil justice system.
Keywords: Mediation, Civil Justice Reform, Mediation Law, People’s Republic of China, Hong Kong
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