Revisiting the issue of enforceability of mediation agreements in Hong Kong
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Revisiting the issue of enforceability of mediation agreements in Hong Kong Yun Zhao
Published online: 2 December 2012 China-EU School of Law 2012
Abstract Introduction Currently, there is no statutory framework governing the enforceability of mediation agreements and case law on this matter has been inconsistent. Materials and Methods While the traditional reluctance to enforce mediation agreements still prevails, judges and commentators are increasingly acknowledging the fact that mediation agreements are enforceable if the terms of the agreements are certain. This issue is particularly relevant considering the rapid development of mediation in Hong Kong and the introduction of the forthcoming Mediation Ordinance. Conclusion This paper suggests that at the current stage, it is not appropriate to impose statutory provisions on this issue which should be a matter for judges to decide based on the facts of each case, applying contract law principles. This paper will also consider the Civil Justice Reform in Hong Kong and discuss the possible effects of the reform with particular focus on the enforceability of mediation agreements. Keywords Mediation agreement Enforceability Legislation Certainty Contract law
1 Introduction Alternative Dispute Resolution (ADR) is a term which refers to a variety of procedures that are available to allow disputing parties to resolve (or attempt to resolve) their conflicts. In contrast to adversarial litigation, it is widely recognised that ADR provides an effective means of preventing dispute and encouraging settlement, which facilitates social harmony. Mediation is widely used and valued in
Y. Zhao (&) Faculty of Law, The University of Hong Kong, Cheng Yu Tung Tower, Centennial Campus, Hong Kong, Hong Kong e-mail: [email protected]
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Chinese society where it is believed that the practice of mediation is largely shaped by Confucian ideology.1 Indeed, mediation plays an indispensable role in the field of dispute resolution around the globe. Many countries increasingly realize the value of mediation and have integrated it into their national dispute resolution framework. The benefits of mediation have long been recognized and are now actively promoted by the Hong Kong Government—Indeed the former Chief Executive Donald Tsang stated that; ‘‘to alleviate conflicts and foster harmony, we will promote the development of mediation services. On many occasions, interpersonal conflicts need not go to court. Mediation can reduce social costs and help parties concerned to rebuild their relationship. This is a new trend in advanced regions around the world.’’2 Civil justice reforms in the UK and Australia have emphasized the usefulness of mediation and strengthened the use of mediation in the civil justice system. Hong Kong is also undergoing rapid developments and the indispensable role of mediation as a form of dispute resolution has been affirmed. The Hong Kong Government published a Consultation Paper3 in early 2010 to consult on matters relating to mediation, one of
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