Mandatory mediation in Hong Kong: a workable solution based on Australian experiences
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Mandatory mediation in Hong Kong: a workable solution based on Australian experiences Sarah E. Hilmer
Published online: 14 December 2012 China-EU School of Law 2012
Abstract It seems that with government’s guidance on mediation procedures— mediation obviously increased once parties are obliged to engage in mediation— statistics from other jurisdictions reveal that the parties not only resolved their dispute but they would also use mediation again. The Australian courts successfully use mandatory mediation in various courts and jurisdictions, state and federal. Hong Kong’s mediation system does not include mandatory mediation, although it has been discussed many times and it has been decided it might be preferable to introduce such a system at a later stage. Practice Direction 31, however, seems to be an indirect form of mandatory mediation. In addition to that, Hong Kong courts now tend to show a more reluctant approach in declaring mediation clauses invalid if those appear to be uncertain and unclear in order to indirectly mandate parties to mediate. The objective of this research paper is to explore and analyse whether mandatory mediation could be a workable solution for Hong Kong considering the current mediation development and situation. Further, the paper identifies whether mandatory, by way of court-annexed, mediation is generally suitable for Hong Kong by comparing Australia’s state and federal jurisdictions that already applied courtannexed mediation. It could be argued that a court-annexed mediation pilot project for Hong Kong is advisable in order to experience a mandatory mediation approach and by providing statistics at the end of such a project. Keywords Mandatory Compulsory Indirect enforceable mediation Mediation Civil procedure rules
S. E. Hilmer (&) GIGA, Institute for Asian Studies, Hamburg, Germany e-mail: [email protected]; [email protected] S. E. Hilmer Sarah E. Hilmer Consultancy, Hamburg, Germany
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1 Introduction 1.1 Approach This research paper aims to explore and analyse whether mandatory mediation in the form of court-annexed mediation could be a workable solution for Hong Kong considering the current development and changing status of mediation. Mediation was introduced to Hong Kong in the 1980s largely guided by Western conventional mediation theory. The provision of mediation in Hong Kong is primarily based on community needs and been initiated by practitioners with limited governmental support. Considering the status quo of Hong Kong’s mediation scene, it appears that certain mediation provider’ measures—conferences and information sessions—have been undertaken but still mediation has not been accepted widely among the public or event amongst professionals, such as business people, lawyers, clients and other stakeholders involved in disputes. The reasons for this position are still unknown; some suggest that it is ‘‘more a reflection of prevailing attitudes amongst litigation lawyers and commercial litigants themselves.’’1 As a result, as poi
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