A Mediation Ordinance and other proposals of the Working Group on Mediation

Progress so far

In the 2007-08 Policy Address, the Chief Executive announced the establishment of a cross-sector Working Party on Mediation (“the Working Party”), headed by the Secretary for Justice, Mr Wong Yan Lung SC. The purpose was to review the current development of mediation and provision of mediation services in Hong Kong, make recommendations on ways to facilitate and encourage the wider use of mediation and ensure the quality and standard of such.

The Working Party, published its report on 8 February 2010, containing 48 recommendations, covering three main areas, namely (1) public education and publicity; (2) accreditation and training; and (3) regulatory framework.

Some of the more notable recommendations are detailed below.

Public Education and Publicity

Mediation First Pledge

Companies, trade associations and organisations were invited by the Working Party’s Public Education and Publicity Sub-group to subscribe to a “Mediate First” pledge and a new website was launched, “www.mediatefirst.hk”. As at February 2010, over 70 companies and 40 trade associations or organisations had signed the “Mediate First” pledge and affirmed their commitment to consider the use of mediation to resolve disputes, before pursuing other Alternative Dispute Resolution processes or court litigation. The Working Party recommended that, given its initial success, the “Mediate First” pledge be encouraged within the business and commercial sector, and promoted to different sectors of the community. Pilot mediation schemes are recommended for suitable areas such as in the workplace and employment, intellectual property, banking and financial services, medical malpractice and healthcare, child protection, environmental, urban planning, land use and re-development.

The Working Party recommended that special efforts be made to promote mediation to unrepresented litigants in court, including promotion of the “Mediate First” website through the Information Office and Resource Centre for Unrepresented Litigants at the High Court.

Schools and Law Faculties

The Working Party noted the importance of introducing the mediation process to young people in Hong Kong and the potential introduction of mediation education in primary and secondary schools. It suggests that the question of mediation being incorporated into compulsory courses in law faculties be revisited when the mediation landscape is more mature. It suggests that the Law Society and Bar Association consider mediation training for their members and whether such training should be compulsory.

Educating the General Public

Mediation publicity, targeting the general public, is recommended, via television (including an Announcement in the Public Interest (“API”)), radio and printed media, with special efforts made to approach TV stations and script writers to consider including mediation in their TV dramas.

Accreditation and Training

Accreditation of Mediators

The Working Party noted that mediators in Hong Kong are accredited by different mediation accrediting organisations, each adopting its own training and accreditation requirements. Further there is no disciplinary mechanism to regulate mediators’ professional conduct and no requirement for mediators to undergo continuing professional development.

The Working Party recommended as desirable the establishment of a single body for accrediting mediators, but considers that it is not the right time to prescribe a standardised system for such. Instead, the current emphasis should be on the provision of appropriate mediation information to potential mediation users, to better enable them to decide whether to use mediation and assist them to choose a competent mediator.

Mediation Code

The Working Party’s Accreditation and Training Sub-group has produced a Hong Kong Mediation Code, consisting of a draft Code of Conduct for mediators and a sample Agreement to Mediate. The Sub-group has received overwhelming support for the Code from mediation service providers. The Working Party has therefore recommended wide promulgation of the Code and that mediation service providers be encouraged to adopt it and set up robust complaints and disciplinary processes to enforce the Code. The Mediation Code is included in the mediation section of the Hong Kong International Arbitration Centre’s website.

Regulatory Framework

A Mediation Ordinance

The Working Party recommended the enactment of a stand alone Mediation Ordinance, rather than the introduction of legislative provisions into the existing Arbitration Ordinance or other Ordinances. It is recommended that the new Mediation Ordinance set out its objectives and underlying principles, key terminology such as “mediation” and “mediator”, but not legislative provisions dealing with enforcement of a mediation agreement. Further, it is recommended that the new Mediation Ordinance should not include provisions dealing with the mediation process, except for a provision dealing with the appointment of a mediator and a provision allowing non-lawyers and foreign lawyers to participate in mediations conducted in Hong Kong.

It is recommended that the new Mediation Ordinance include provisions dealing with confidentiality and privilege. It is considered unnecessary to include a provision suspending the running of limitation periods during the mediation process or the granting of immunity to mediators from civil suits. It is also considered unnecessary to include provisions for enforcing mediated settlement agreements. Instead, it recommends that, where necessary, enforcement of mediated settlements can be left to the court, as in the ordinary cases of enforcement of contracts.

Compulsory Mediation

The Working Party recommends that at this stage the judiciary should not provide mediation services and that compulsory referral to mediation by the court should not be introduced. It is suggested that this issue be readdressed once mediation in Hong Kong is more developed.

Mediation Rules

The Working Party has no objection to the new Mediation Ordinance including a set of mediation rules, but recommends that such serve as a guide only and not be mandatory, so as to maintain flexibility and leaving the parties free to adopt such mediation rules as they deem fit.

Legal Aid

The Working Party recommends that Legal Aid be provided to legally aided persons who are willing to mediate.

Consultation Period

Following a three month consultation period, a Mediation Task Force, chaired by the Secretary for Justice, was set up to review the Working Party’s recommendations and submissions received during the consultation period, and to advise on how the recommendations be modified (where necessary) and implemented. The Mediation Task Force was also charged with liaising with professional bodies, mediation service providers and other stakeholders in relation to public education and promotion of mediation, accreditation and training and regulatory framework.

The Task Force reported as follows in April 2011:-

Public Education and Publicity Initiatives

1) There was general support for the Working Party’s recommendations in respect of public education and publicity for mediation in Hong Kong. Currently, the Task Force and its Public Education and Publicity Group is proceeding to implement the following initiatives:

• Proposal to hold a second Mediation In Hong Kong Conference in 2012; and

• Proposal to produce an API to be broadcast on television for the promotion of mediation.

Accreditation Body

2)The majority of submissions received during the consultation period urged the setting up of a single accreditation body and as soon as possible, rather than reviewing the need for such in five years time. As there are a number of mediation service providers, it is important for them to work together on the formation of an accreditation body and agree on mutually acceptable professional standards, including training standards.

3)It was premature to provide a statutory scheme for establishment of a single accreditation body at this stage, but a non-statutory, industry led, single accreditation body should be supported. The Accreditation Group of the Task Force is deliberating on the terms and conditions of settling up such industry led accreditation body.

Mediation Ordinance

4)There was overwhelming support from the public consultation for the enactment of a Mediation Ordinance. The Task Force and its Mediation Ordinance Group is now working on the contents of the proposed Mediation Ordinance.

5) The Task Force considers that the Mediation Ordinance will primarily (i) provide clarification on what is meant by “mediation”; (ii) cover confidentially provisions; and (iii) cover privilege in mediation.

6) The Task Force will seek to introduce the Mediation Bill into Legislative Council towards the end of 2011.

Task Force’s Work Programme

The Task Force’s programme for the following two years is to:-

• Work with mediation stakeholders to keep in view the development of the system of accrediting mediators;
• Work out the details of the proposed mediation legislation, taking into account the development of the mediation landscape. It is envisaged that the legislation will set out a framework for the conduct of mediation;
• Work with relevant stakeholders to oversee the adoption and implementation of the Hong Kong Mediation Code and to review the operation of the Code in the light of experience;
• Work with mediation service providers, professional bodies, community organizations, other stakeholders and Government Bureaux and Departments to take forward the various public education and publicity initiatives recommended by the Working Group, including the production of an API on mediation, identifying community venues for mediation users, and fostering the wider use of community mediation; and
• Work with relevant parties to further explore the opportunities for initiating pilot mediation schemes in different sectors.

Conclusion

With the proposed widespread publicity for mediation and its introduction into education and training, it is likely that mediation will become increasingly popular as a means of resolving disputes. The fact that a large number of companies and organizations have already signed a “Mediate first” pledge, shows that businesses in Hong Kong are at least willing to try mediation first, before resorting to other alternative dispute resolution processes or court proceedings.