Mediation Ordinance to take effect on 1 Jan 2013

Dear all,

Mediation Ordinance to take effect on 1 Jan 2013

I am Natalia Cheung, a Hong Kong International Arbitration Centre (HKIAC) Accredited Mediator and a practising solicitor in Hong Kong.

 
I would like to share with you some information on the new Mediation Ordinance (Cap. 620), laws of Hong Kong (“Ordinance”) which shall come into operation on 1 Jan 2013.
 

The aim of the Ordinance is to promote, encourage and facilitate dispute resolution by mediation, and protect the confidential nature of mediation communications, and thereby help enhance Hong Kong's status as a leading dispute resolution centre in the Asia-Pacific region.

Application of the Ordinance

Pursuant t0 section 5(1) of the Ordinance, the Ordinance is applicable:

(i)    if the mediation is conducted wholly or partly in Hong Kong; or

(ii)   if the agreement to mediate specifies that the Ordinance or the laws of Hong Kong apply, irrespective of whether the mediation is conducted before, on or after the commencement date of the Ordinance.

Statutory definition of mediation

Under section 4 of the Ordinance, Mediation is defined as a structured process in which an impartial mediator, without adjudicating a dispute, assists the parties to the dispute to identify the issue in dispute, explore and generate options and communicate with one another with a view to reaching a resolution.

Confidentiality of mediation communication

Under section 8 of the Ordinance, (i) anything said or done; or (ii) any document prepared or any information provided, for the purpose of or in the course of mediation (excluding an agreement to mediate or a mediated settlement agreement) may not be disclosed by a person unless the:

• Parties to the mediation have consented;
• Mediator has consented;
• Information has already been lawfully put into the public domain
• Mediation communication is subject to discovery in civil proceedings (we take this to mean that it should be listed in the parties' list of documents);
• Disclosure is made for the purpose of seeking legal advice or in accordance with law;
• Disclosure is made for research or educational purposes without revealing the identity of the persons to whom the communication relates;
• Prior approval of the court (or tribunal) has been obtained.

Admissibility in evidence

Under section 10 of the Ordinance, mediation communication may be admitted in evidence in Court proceedings only with leave of the Court or tribunal.

 

The Ordinance has provided guidelines that the Court  or the Tribunal have to consider when determining whether to grant leave for mediation communication to be disclosed or admitted in evidence.

For further information on mediation, please contact Ms. Natalia Cheung 

[(852)-6777 5767]

E-mail: natalia@plaw.hk

Natalia Cheung 

HKIAC Accredited Mediator & Hong Kong Solicitor

Pang Kung & Co., HK Solicitors & Notaries & Civil Celebrants of Marriages

 

 

 

 

Disclaimer: The above is for your information and reference only. The contents do not constitute legal advice or a substitute for legal advice in individual cases.