Making Offer in Mediation

Dear all,

Making Offer in Mediation

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 information on making offer in mediation.

 The offer made by one party to the opposite side during mediation would generally be viewed by the opposite side as falling into one of the following 3 categories:

(1) Insulting

(2) Credible

(3) Reasonable

 

(1)  Insulting offer: E.g. offer that has already been repeatedly rejected by the other side or any offer (if accepted) would mean a total loss to that party.

 

Making insulting offer to the opposite party would not generate any positive response and would probably ruin the mediation process. Party in mediation should avoid making such offer to the other side

 

Making an offer with too much of a concession would likely embolden the opposite side and create more difficulty in the negotiation process.

 

(2)  Credible offer:  This type of offer facilities the parties to anchor the negotiation and encourage mutual examination and adjustment of the expectations of both parties in attempting settlement by mediation. Parties should clearly indicate that the offer is negotiable or support their offer with explanation or justification in making offer that is at the borderline of a credible offer or an insulting offer.

 

(3)  Reasonable offer: It is an offer that would generally be acceptable to the parties in disputes and that settlement could be reached between the parties. Parties in mediation should therefore work together towards the making of such offer.

 

When the negotiation is in progress, the parties should enable the mediator to review and comment on the offers made by the respective parties, their negotiation pace and pattern, and the remaining gap between the parties. This in turn could help the parties to make an informed decision of whether smaller or large moves should be made in the negotiation process of mediation.       

 

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. 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.

 

 

Good Reason to Refuse Mediation ?

Dear all,

Good Reason to Refuse Mediation ?

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 information on whether the reasonable belief of a party of having a strong case could be regarded as a good reason to refuse mediation.

In the recent water leakage case of Good Try Investments Ltd. v Easily Development Ltd. (DCCJ 3346/2011), the Plaintiff claimed that it has a strong case and therefore refused to attempt mediation of a settlement of its claim.

The Hong Kong District Court has to decide whether it is a good reason to refuse mediation if the Plaintiff reasonably believes that it has a strong case.

In deciding on this issue, Deputy District Judge Tracy Chan referred to Dysan LJ’s speech in Halsey v Melton Keynes General NHS Trust [2004] 1 WLR 3002 which was cited by Lam J, as he then was, in Golden Eagle International (Group) Limited v GR Investment Holdings Limited HCA 2032/2007:-

“27. The fact that a party reasonably believes that he has a strong case is relevant to the question whether he has acted reasonably in refusing ADR. If the position were otherwise, there would be considerable scope for a claimant to use the threat of costs sanctions to extract a settlement from the defendant even where the claim is without merit. Courts should be particularly astute to this danger.”

“28. Large organizations, especially public bodies, are vulnerable to pressure from claimants who, having weak cases, invite mediation as a tactical ploy. They calculate that such a defendant may at least make a nuisance-value offer to buy off the cost of a mediation and risk of being penalized in costs for refusing a mediation even if ultimately successful.”

21. Lam J was of the opinion that the scenario as referred to by Dysan LJ was unlikely to occur in Hong Kong. Further he cited another passage in the judgment of Dyson LJ to illustrate in what circumstances a party could say that the he has reasonable belief of a strong case:-

“30. Some cases are clear-cut. A good example is where a party would have succeeded in an application for summary judgment … Other cases are more borderline. In truly borderline cases, the fact that a party refused to agree to ADR because he thought that he would win should be given little or no weight by the court when considering whether the refusal to agree to ADR was reasonable. Borderline cases are likely to be suitable for ADR unless there are significant countervailing factors which tip the scales the other way.”

Applying the above principle to the facts of the case, Deputy District Judge Tracy Chan did not agree with the Plaintiff that the liability of the Defendant for being the source of water leakage was a clear cut matter. The Court noted that the source of water leakage, which was not easy to locate, was very often a hotly argued issue at trial. The Court was not convinced that the Plaintiff had a good reason to refuse mediation.

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.

Admissibility of mediation communications

Dear all

 
Admissibility of mediation communications in evidence
 

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 admissibility of mediation communications in evidence in court proceedings.

Under section 2 of the Mediation Ordinance (Cap. 620), “mediation communication” means—

(a) anything said or done;
(b) any document prepared; or
(c) any information provided,

for the purpose of or in the course of mediation, but does not include an agreement to mediate or a mediated settlement agreement.

Section 9 of the Mediation Ordinance stipulates that mediation communication may be admitted in evidence in any proceedings (including judicial, arbitral, administrative or disciplinary proceedings) only with the leave of the court or the tribunal under section 10 of the Mediation Ordinance.

Section 10 of the Mediation Ordinance stipulates that the court or tribunal must consider the following in deciding whether to grant leave for the disclosure and admission of a mediation communication in evidence—

(a) whether the mediation communication may be, or has been, disclosed under section 8(2) (e.g. with the consent of mediator or the parties to mediation or the disclosure is for purpose of obtaining legal advice, etc);
(b) whether it is in the public interest or the interests of the administration of justice to do so;
(c) any other circumstances or matters that the court or tribunal considers relevant.

In Lincoln Air-Conditioning & Engineering Company Limited & Honeycool Refrigeration & Engineering Co Limited v Chan Ping Fai Ricky & Others (HCA 527 /2010), the Hong Kong High Court on 21 January 2013 refused to grant leave to the Defendants to rely on the mediation communication to support their defence that the claims made by the plaintiffs were all included and settled by way of the Memorandum of Agreement reached after mediation. The paragraphs in the amended defence and the witness statements of the defendants which contain mediation communication had to be expunged.

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.

Greetings for the Year of the Snake

Dear all

I wish you good health and a prosperous Lunar Chinese New Year 2013 !

Thank you very much for visiting this blog for mediation.

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