Confidentiality of Mediation Communications

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 confidentiality of mediation communications

 

Pursuant to section 8 of the Mediation Ordinance (Cap.620), a person must not disclose a mediation communication provided that :

(a) the disclosure is made with the consent of—

(i) each of the parties to the mediation

(ii) the mediator (s) for the mediation; and
(iii) if the mediation communication is made by a person other than a party to the mediation or a mediator—the person who made the communication;

(b) the content of the mediation communication is information that has already been made available to the public, except for information that is only in the public domain due to an unlawful disclosure

(c) the content of the mediation communication is information that is otherwise subject to discovery in civil proceedings or to other similar procedures in which parties are required to disclose documents in their possession, custody or power

(d) there are reasonable grounds to believe that the disclosure is necessary to prevent or minimize the danger of injury to a person or of serious harm to a child well being;

(e) the disclosure is made for research, evaluation or educational purposes without revealing, or being likely to reveal, directly or indirectly, the identity of a person to whom the mediation communication relates;

(f) the disclosure is for seeking legal advice; or

(g) the disclosure is made in accordance with a requirement imposed by law.

The disclosure is made with the approval of the Court or tribunal—

(a)    for enforcing or challenging a mediation settlement agreement

(b)   for establishing or disputing an allegation or complaint of professional misconduct made against a mediator or any other person who participated in the mediation in a professional capacity; or

(c)    for any other purpose that the court or tribunal considers justifiable in the circumstances of the case.

 

In Champion Concord Limited v Lau Koon Foo (No 1), the Hong Kong Court of Final Appeal (FACV 16 & 17/2010) stated that：

“The fundamental importance of confidentiality in mediation is universally acknowledged and it can only be in highly exceptional circumstances that evidence which invades such confidentiality will be permitted to be adduced.”

This principle of confidentiality in mediation has subsequently been applied by the Lands Tribunal in Tsang Wing Lam v Incorporated Owners of King Tin Court and Prestige Construction & Engineering Co. Ltd. (LDBM 189/2012)

 

For further information on mediation, please contact Ms. Natalia Cheung [(852)-6777 5767 or  E-mail: natalia@plaw.hk]


Natalia Cheung 

HKIAC Accredited Mediator & Hong Kong Solicitor

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