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.

Initial Caucus Session in Mediation

Dear all,

Initial Caucus Session 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 some information on caucus session in mediation.

 

At the conclusion of the initial joint session, mediator will usually separate the disputed parties and meet with them privately (i.e. caucus session).

The purpose of the caucus session is to enable the mediator to identify and explore the underlying concerns and interests of the disputed parties and to have better understanding of the parties’ views and positions to the disputes.

During caucus session, mediator would encourage the parties to openly and frankly discuss their difficulties in the disputes or to disclose confidential information relating to the disputes so as to assist the mediator to identify the barriers to settlement and to facilitate the parties to overcome such barriers.

Mediator should assure a party that his/her confidential information will not be disclosed/ communicated to the other side without his/her prior consent.

Mediator may often pose questions directly to the parties’ legal representatives to enable the parties to have a more realistic and accurate understanding of their own positions and needs and those of the opposite side, and to explore settlement possibility and options.

 

Questions that may be posed include:  

“Why do you want to engage in the court case?”

 “How do you assess the strengths and weaknesses of your case?”

“What do you think the opposite side really wants?”

“Have you thought of the implications of the court proceedings and decision on you and/or your company?”

 

Through the caucus session, mediator should help the parties to move away from focusing on the perceived merits of their case but to work together for a mutually interest based problem solving approach to the disputes.

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.

 

Mediation under Land (Compulsory Sale for Redevelopment) Ordinance

Dear all,

Mediation under Land (Compulsory Sale for Redevelopment) Ordinance

 

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 mediation for land compulsory sale cases under the Land (Compulsory Sale for Redevelopment) Ordinance (Cap. 545), Laws of Hong Kong (“Compulsory Sale Ordinance”).

 

Section 4(2) of the Compulsory Sale Ordinance stipulates that the Lands Tribunal shall not make an order for sale unless it is satisfied that, inter alia, the majority owner has taken reasonable steps to acquire all the undivided shares in the lot (including, in the case of a minority owner whose whereabouts are known, negotiating for the purchase of such of those shares as are owned by that minority owner on terms that are fair and reasonable).

 

Pursuant to Practice Direction LTPD CS1 2011 issued under section 10(5)(a) of the Lands Tribunal Ordinance (Cap. 17), parties in compulsory land sale cases should attempt mediation to settle the dispute. This includes the purchase of shares in the lot which are owned by the minority owner.

If the majority owner in compulsory sale cases unreasonably fails or refuses to attempt mediation with the minority owner, the Lands Tribunal may consider him as not having taken all reasonable steps under section 4(2) of the Compulsory Sale Ordinance to acquire the minority owner's undivided share of the lot.  The Lands Tribunal is entitled to take into account such failure or refusal in deciding whether to grant an order for sale or not.

Further, in exercising its discretion on costs, the Lands Tribunal shall take into account any unreasonable failure of a party to engage in mediation, where it can be established by admissible materials.

However, the Lands Tribunal shall not refuse to grant an order for sale or make any adverse costs order against a party on the ground of unreasonable failure to engage in mediation when:

(1)   The party has engaged in mediation to the minimum level of participation agreed to by the parties or as directed by the Lands Tribunal prior to the mediation in accordance with paragraph 8(6) of the said Practice Direction.

(2)   A party has a reasonable explanation for not engaging in mediation.

In any event, legal representatives should advise their clients that the Lands Tribunal is entitled to refuse to make an order for sale and/or to make an adverse costs order when a party unreasonably fails to engage in 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.

 

 

 

Season’s Greetings from Natalia Cheung for 2012-2013

 

Dear all,

 

Season’s Greetings from Natalia Cheung for 2012-2013

I sincerely wish you a Merry Christmas & a prosperous New Year 2013 !

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

   

Settlement Agreement for Mediation

Settlement Agreement

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 settlement agreement which the disputed parties may enter into upon mediation.

For a commercial dispute, the settlement agreement should generally contain the following:

(1)    Identification of the Parties

(2)   Brief description of the dispute

(3)   Settlement in full or in part

(4)   Settlement terms

(5)   Settlement sum and provision of interests

(6)   Time and method of payment of settlement sum

(7)   Mechanism of default of payment

(8)  Discontinuance or withdrawal of the existing    legal proceedings

(9)   Legal costs

(10)  Mediation costs

(11) Governing law and jurisdiction

(12) Signatory, his status and authority

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

  

HK Judiciary- Judgments related to Mediation

HK Judiciary- Judgments related to 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 that a database of judgments/reasons for decision related to mediation is maintained by the Hong Kong Judiciary. The database can be accessed at: http://mediation.judiciary.gov.hk/en/judgements.html

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

   

Mediation for Labour Disputes

Dear all,

Mediation for Labour Disputes

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 mediation for disputes in employment matters.

Appointment of mediator or mediation board

Under section 11A of the Labour Relations Ordinance (Cap. 55) (“Ordinance”), laws of Hong Kong, where a trade dispute exists and whether or not ordinary conciliation or special conciliation has been attempted, the Commissioner for Labour may appoint a mediator or a board of mediation consisting of at least two persons to mediate the trade dispute.

Section 2 of the Ordinance defines “trade dispute" as any dispute or difference between employers and employees, or between employees and employees, connected with the employment or non-employment, or the terms of employment, or with the conditions of or affecting employment, of any person.

Powers of Mediator

Under section 11B of the Ordinance, the mediator appointed is empowered to inquire into the causes and circumstances of a trade dispute and may –

(a) visit premises where parties to the trade dispute or other interested parties are employed or carry on business;

(b) conduct interviews with the parties to the trade dispute or other interested parties;

(c) make observations or do such other things which the mediator considers will assist in mediating the dispute; and

(d) make recommendations in public or in private to the parties concerning the settlement of the trade dispute.

Privileged communications

Under section 11D of the Ordinance, any communications between the parties to the trade dispute and the mediator shall not be admissible in evidence in proceedings before an arbitration tribunal or a board of inquiry, except with the consent of the person who gives such information.

 

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