23 December, 2012

 

Legal News & Analysis – Asia Pacific – Hong Kong – Dispute Resolution

 

Background

 

The cross-sector working party on mediation's remit is to review the development and provision of mediation services in Hong Kong and 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, one of which was the enactment of a stand alone Mediation Ordinance, to provide a regulatory framework in respect of certain aspects of mediation, including (amongst other things) confidentiality and privilege.

 

The Mediation Bill was introduced into LegCo on 18 November 2011 and passed on 15 June 2012. On 16 October 2012, the Secretary for Justice announced that the Mediation Ordinance ("the Ordinance") will come into effect on 1 January 2013.

 

Purpose of the Ordinance

 

The Ordinance states it objects as:

 

1. to promote, encourage and facilitate the resolution of disputes by mediation; and
2. to protect the confidential nature of mediation communications.

 

Mediation defined

 

For the purpose of the Ordinance, "mediation" is defined as:

…" a structured process comprising one or more sessions in which one or more impartial individuals, without adjudicating a dispute or any aspect of it, assist the parties to the dispute to do any or all of the following:

 

1. identify the issues in dispute;
2. explore and generate options;
3. communicate with one another;
4. reach an agreement regarding the resolution of the whole, or part, of the dispute".

 

A "session" is a meeting between a mediator and one or more of the parties to the dispute and includes any activity undertaken in respect of arranging or preparing for it (whether or not it takes place ) and follow up of issues raised at it.

 

What mediations does the Ordinance apply to?

 

The Ordinance applies to any mediation conducted under an agreement to mediate if either of the following circumstances apply:

 

1. the mediation is wholly or partly conducted in Hong Kong; or
2. the agreement provides that the Ordinance or the law of Hong Kong is to apply to the mediation.

 

The Ordinance does not apply to those processes listed in Schedule 1 of the Ordinance. These include, for example, mediation proceedings under sections 32(3) and 33 of the Arbitration Ordinance (Cap 609), mediation under Part IIA of the Labour Relations Ordinance (Cap 55) or under section 11B of the Ombudsman Ordinance (Cap 397) and conciliation under, for example, the Labour Tribunal, Minor Employment Claims Adjudication Board Ordinance and Sex Discrimination Ordinance (for a full list, click here :Schedule 1 of Mediation Ordinance)

 

The Ordinance applies to:

 

1. agreements to mediate made before, on or after 1 January 2013 i.e. the date when the Ordinance will come into effect;
2. mediations conducted before, on or after 1 January 2013.
3. mediation agreements entered into in Hong Kong or elsewhere.

 

What mediation communications does the Ordinance apply to?

 

The Ordinance applies to any mediation communication (made before, on or after 1 January 2013) relating to any mediation to which the Ordinance applies. A "mediation communication" means:

 

1. anything said or done;
2. any document prepared; or
3. any information provided

 

for the purpose of or in the course of mediation, but does not include:

 

1. an agreement to mediate; or 
2. a mediated settlement agreement.

 

Confidentiality of mediation communications 

 

The Ordinance prohibits a person from disclosing a mediation communication, except in the following circumstances:

 

1. with the consent of the parties to the mediation, the mediator(s), and the person who made the communication (in those cases where s/he is not a party to the mediation);
2. information that is already in the public domain (apart from that put in the public domain unlawfully);
3. information which is otherwise subject to discovery in civil proceedings or similar procedures;
4. there are reasonable grounds to believe that disclosure is necessary to prevent/minimise danger of injury to any person or of serious harm to a child's well-being;
5. disclosure is made for research, evaluation or educational purposes, without revealing the identity of the person to whom the mediation communication relates;
6. disclosure if made for the purpose of seeking legal advice; or
7. disclosure is required by law.

 

A mediation communication can be disclosed, with the court's or tribunal's leave, for the following purposes

 

1. enforcing or challenging a mediated settlement agreement;
2. establishing or disputing an allegation or complaint of professional misconduct made against a mediator, or any other person who participated in the mediation in a professional capacity;
3. any other purpose that the court or tribunal considers justifiable in the circumstances of the case. 

 

Admissibility of mediation communications in evidence

 

A mediation communication can only be admitted in evidence in proceedings with the court's leave.

 

Leave for disclosure or admission into evidence of a mediation communication

 

The Ordinance specifies the matters to be taken into account by the court or tribunal when deciding whether to grant leave for disclosure of a mediation communication or its admission into evidence, namely whether the mediation communication may be or has been disclosed i.e. whether it falls within one of the categories, referred to at (a) to (g) above, whether it is the public interest or interests of the administration of justice and any other circumstances or matters the court or tribunal considers relevant.