Mediation in Hong Kong SAR

Abstract

The Hong Kong Mediation Ordinance (the ‘Ordinance’) was passed on 15 June 2012 and came into force on 1 January 2013. The Ordinance applies when mediation is conducted at least partially in Hong Kong or pursuant to a written agreement to mediate which refers to the law of Hong Kong or the Ordinance itself. It aims to provide a regulatory framework for promoting the use of mediation as a dispute resolution process and protecting the confidential nature of mediation communications. It defines ‘mediation’ as a facilitative process in which one or more neutrals assist disputants to identify the issues in dispute, explore and generate options, communicate with one another, and/or reach a settlement agreement as to the whole or part of the dispute. Further, it prohibits disclosure or admissibility of mediation communications unless in exceptional circumstances or with leave of the court.

At present, Hong Kong has not adopted legislation based on the Model Law on International Commercial Conciliation of the United Nations Commission on International Trade Law (the ‘Model Law’). Its adoption seems unlikely for the following reasons. First, the Ordinance is broader in scope and sets out provisions similar to articles 8 to 10 of the Model Law. Second, mediation rules of major service providers, such as the Hong Kong International Arbitration Centre, the Law Society of Hong Kong and Hong Kong Mediation Centre, are in place to govern the commencement of mediation, appointment of mediators, role of mediators, conduct of mediation, termination of mediation and relationship with other dispute resolution processes. Finally, enforceability of settlement agreement was left out in the Ordinance, as the drafters considered the action of breach of contract suffice.

In what follows, this chapter tracks the development of mediation practice in Hong Kong. It then examines the consequences on the courts, legal practitioners and scholars. It concludes that pro-mediation policies and practice have positioned Hong Kong in line with major common law jurisdictions. The continuing contribution from the mediation industry and legal scholarship is crucial to enhance mediation services in the future.

Keywords: Mediation, Mediation Ordinance, Hong Kong Law, Alternative Dispute Resolution