Questions and Answers
Mediation is an alternative dispute resolution to litigation. During mediation, a mediator will act as an independent individual to assist the parties in understanding the issues in dispute and the benefits and needs of each party in order to reach a mutually acceptable solution. The mediator will also assist in drafting terms of settlement. If the parties reach an agreement, they have to sign terms of settlement, which is legally binding. Parties voluntarily participate in mediation, which is a completely confidential process.
The parties do not have to bear the huge legal costs of litigation.
The parties do not have to spend years on litigation to have their dispute resolved.
Theparties can control the results of resolution. They do not have to encounter the unpredictable judgments of the Court. They do not have to bear the long-lasting stress and suffering of litigation.
The parties do not have to attend days, weeks or even months of trial hearings and bear the suffering arising from cross-examination by solicitors or counsel for hours, days or even weeks.
The parties can maintain a friendly relationship after the dispute is resolved.
The mediation process is completely confidential. The parties do not have to worry about disclosing the issues to the public during litigation. The information disclosed during mediation is not admissible in Court.
The mediator can assist the parties to understand the views of each other in order to reach a win-win situation.
Most of the time, parties do in fact wish to reach an agreement but they do not know how to do so. Mediators can introduce a new perspective, with their experience and professional knowledge, to assist the parties to reach new proposals.
It usually costs a few thousand dollars.
It depends on the number of issues in dispute, the complexity of the dispute, and the degree of the parties’ willingness to participate in the mediation sessions. If the dispute is not too complicated, it may only take a few hours for the parties to reach an agreement.
Mediation is suitable for nearly all kinds of disputes. However, mediation is not suitable for family disputes involving child abuse, domestic violence, etc. as a party’s decision to enter into a settlement may be unduly influenced. Where one or more of the parties are in a severely disturbed emotional or psychological state, such that they cannot represent themselves or focus on the needs of their children, mediation is not suitable.
Mediation is most suitable for those who do not want to bring their dispute before the Court and are willing to commit to resolving the dispute peacefully. It is suitable for neighbours, relatives or businesses who wish to maintain a friendly relationship with one another.
Every party to a dispute can ask for mediation.
Mediators do not make decisions for the parties. Mediators merely facilitate the settlement process by helping the parties think about possible solutions to the dispute. The parties will come up with a solution to resolve their own dispute. Any resolutions in the mediation process will not be final, until they come to a settlement agreement, and nobody can force the parties to sign any terms of agreement.
Accredited Mediators have been trained in mediation skills and methods. They need to meet the requirements covering knowledge and skills of negotiation and dispute resolution. Moreover, they have to comply with a Code of Practice. Complaints against mediators are handled by the Accredited Authorities.
The mediator will conduct a joint session, where all the parties are present. The mediator will first make his opening statement by providing some background about himself, explaining his role, the mediation process and the ground rules thereof. The parties will then make opening presentations in turn to share their views on the disputes and clearly define the issues involved.
If an agreement cannot be reached at the joint session or if either party or the mediator decides it would be beneficial for the mediator to meet privately with each party, a private meeting (or a caucus) may be held. The parties will retire to separate rooms and the mediator will pass between the parties assisting them to assess the feasibility of their negotiation terms. All matters discussed with the mediator at private conferences are confidential and will not be disclosed by the mediator to the other party without explicit consent.
Throughout the process, the mediator helps the parties evaluate the case, identify their fundamental interests, explore and consider possible consequences if the dispute is not settled, develop alternatives to deal with various issues in the dispute and formulate proposals that will help move the process towards a mutual agreement.
The mediation sessions may be terminated by the parties at any time during the process. If an agreement is reached, the parties will sign a settlement agreement, which will be binding on the parties.
The parties should familiarise themselves with the facts of the case, consider in advance various acceptable settlement options, seek prior legal advice if necessary and most importantly, arrange to have individuals whose decisions are necessary for resolution present for the entire mediation. If the person is representing a company or an owners’ corporation, the person needs to submit the authorisation documents.
The mediation process is entirely voluntary; however, if the dispute is or will be subject to Court proceedings, since 1st January 2010, the Court will take into account all relevant circumstances, including any unreasonable failure of a party to engage in mediation, in exercising its discretion to award costs. A party may face an adverse costs order if the Court finds that the party unreasonably fails to engage in mediation.
If the parties can not reach any agreement, they may consider bringing the dispute to Court and going through the litigation process. The parties could also reach an agreement to decide the dispute by arbitration. All discussions during a mediation session is on a ‘without prejudice’ basis – this means that nothing discussed in the mediation can be used as evidence in future legal proceedings. The parties will not be at a disadvantage after trying mediation which turns out to be unsuccessful. They may find out that the issues are clearer as a result.
Mediation is a private and confidential process. No third party is privy to the mediation proceedings other than the parties and the mediator. Besides, matters discussed in private meetings should not be disclosed to the other party by the mediator without permission.
It can be accessed on the website of the Department of Justice of the Hong Kong Special Administrative Region http://www.doj.gov.hk/eng/public/pdf/2013/cape.pdf.