New solution: Secretary for Justice Wong Yan Lung launches the three-month consultation on more effective and extensive mediation in commercial and community disputes.

The Department of Justice has launched a three-month consultation on more effective and extensive mediation in commercial and community disputes.

At a press conference today Secretary for Justice Wong Yan Lung said the cross-sector working group on mediation has reviewed and considered many important issues fundamental to the greater use of mediation in Hong Kong, taking into account overseas and local experience.

"The time, costs, acrimony and uncertainty involved in traditional litigation raise hard issues as to whether the present dispute-resolution process is adequate to meet the needs of justice and efficiency. Increasingly, mediation is considered the alternative or even the preferred method," said Mr Wong, also chairman of the working group.

Mediation Ordinance

In its report published today, the working group recommends enacting a stand-alone Mediation Ordinance providing a proper legal framework for the conduct of mediation without hampering the flexibility of the mediation process.

The proposed law should set out its objectives and underlying principles, and key terminology such as "mediation" and "mediator". It should also include provisions dealing with the rules of confidentiality and privilege, as well as setting out the statutory exceptions to the rules and the sanctions for breaching the rules of confidentiality and privilege.

The working group has no objection in to including model rules in the proposed law, but thinks it is not necessary. However, any model mediation rules so included should only serve as a guide and not be made mandatory. To maintain flexibility of the mediation process, parties can choose their own mediation rules.

It does not consider it necessary to include in the proposed law a statutory mechanism for enforcing mediated settlement agreements, as such settlements can be enforced by the courts as contracts where necessary.

"The working group believes, at this stage, the Judiciary should not provide mediation services nor introduce compulsory referral to mediation," Mr Wong said, while adding these issues should be revisited in future after consultation with the Judiciary.

The group supports the provision of legal aid for mediation.

Mediator accreditation

It suggests establishing a single body for accrediting mediators and to educate the public about mediators and mediation.

However, it said the time is not right to prescribe a standardised system of accrediting mediators and the emphasis should be put on providing proper mediation information to potential users to help them decide whether to choose mediation to resolve disputes and select competent mediators. The group recommends reviewing the possibility of a single mediation accrediting body in Hong Kong in five years.

The report recommends wide promulgation of the Hong Kong Mediation Code. Robust complaints and disciplinary processes should be established to enforce it.

Given the initial success of the 'Mediate First' pledge campaign with more than 100 companies and trade organisations participating, Mr Wong said it should be continued within the business and commercial sector, and promoted to different sectors of the community.

Pilot projects

"Mediation pilot schemes should be considered for disputes in areas such as in the workplace and employment, intellectual property, banking and financial services, medical malpractice and healthcare, child protection, environment, urban planning, land use and redevelopment," he said.

Pending the outcome of a pilot project on community venues for mediation implemented last May to provide block booking of community venues for the conduct of mediation, the report recommends at least one community centre each on Hong Kong Island, in Kowloon and in the New Territories be made available as venues for mediation.

The group encourages universities to consider enhancing mediation education and incorporating the question of mediation into law faculties' compulsory courses. The introduction of mediation education in primary and secondary schools, as well as the expansion of the Peer Mediation Projects, should also be considered.

Click here for the working group report and the executive summary. Views should be submitted by May 8 by writing to the department at 1/F, High Block, Queensway Government Offices, 66 Queensway, Hong Kong, or by sending an email or fax to 2869 0720.