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.