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

  

Happy New Year 2013 !

Dear all

 
Happy New Year 2013 !

Thank you very much for your interest in the information provided by 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

  

 

Mediation costs & stay of proceedings pending Mediation

Dear all,

Mediation costs & stay of proceedings pending 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 the principle laid down by the Hong Kong High Court in CY FOUNDATION GROUP LIMITED v LEONORA YUNG and 11 Others (HCA 933/2011) on deciding the following issues: 

(1) how the fees and costs of mediation are to be shared between the parties;

(2) whether there should be an interim stay of the proceedings pending mediation

1^st issue: Apportionment of mediator’s fees and mediation costs

In that case, the plaintiff proposed that the mediator’s fees and the costs of mediation should be shared and paid by the plaintiff and defendants equally, such that each party should beresponsible in equal shares for 1/13 of the whole amount of fees and costs and such costs should not be recoverable as costs of the proceedings against the losing party (or parties) if mediation fails.

The defendants disagreed and suggested that the plaintiff on one side and the 1^st to 12^th defendants on the other side should bear half of the fees and costs of mediation, and if the mediation fails, it should be costs in the cause.

The Court held that the in apportioning mediation fees and cost among the parties for the mediation service rendered, reference should be made to the value of the stake of the parties in mediation and the service rendered by the mediator to the parties on a broad brush basis. It is not appropriate to bog down to detail of time and work for each of the parties served by the mediator as this will lead to unnecessary satellite disputes among the parties.

 

The Court held that the plaintiff’s proposal has not taken into account the value of the plaintiff’s claims and value of its stake in mediation, namely, the aggregate of its claims against all the defendants, and the fact that the mediator may have to attend the parties individually as each party may have his or her own interest for settlement.

 

The Court also held that the costs for mediation should be in the cause of the proceedings as it is closely connected with the litigation, citing para. 89-94 of Judgment in Chun Wo Construction & Engineering Co. Ltd. Fujita Corporation Henryvicy Construction Co. Ltd trading as Chun Wo-Fujita-Henryvicy Joint Venture v. China Win Engineering Ltd. HCCT 37/2006)

“89. Section 52A of the High Court Ordinance empowers the court to determine the costs of and incidental to all proceedings the Court of First Instance. The issue is whether costs of the mediation can be regarded as costs incidental to the legal proceedings…..

92. As a matter of principle, for the purpose of deciding whether some costs should be regarded as costs incidental to legal proceedings, I fail to see any valid distinction between costs incurred on negotiations and costs incurred in mediation. Both are alternative means to settle a civil dispute that would otherwise be litigated.

93. In Vellacott v Convergence Group plc [2007] EWHC 1774 (Ch) Rimer J (as he then was) held that the costs of a failed post-action mediation were costs incidental to the court proceedings. The English Court of Appeal made a similar order in Eagleson v Liddell [2001] EWCA Civ 155.

94. It is a question of fact whether a mediation is so closely connected with a piece of litigation such that the costs of mediation can properly be described as costs incidental to a set of legal proceedings. If a mediation takes place a long time ago before parties commence legal proceedings, the court may be slow to conclude that the costs of such a mediation should be taxable as costs incidental to the legal proceedings, see Lobster Group Ltd v Heidelberg Graphic Equipment Ltd [2008] EWHC 413 (TCC), 6 March 2008.”

On the above basis, the Court decided that the defendants’ suggestion should be accepted. The Court ordered that:

 

(i)    the fees and cost of mediation shall be borne by the plaintiff and the defendants as to one half of the total amount to be paid by the plaintiff and the other half by the defendants in equal shares, and

(ii)   the costs of mediation, if failed, shall be the costs in the cause.

 

2^nd issue: Interim stay of proceedings pending mediation

The defendants asked for an interim stay of 90 days pending mediation for saving costs while the Plaintiff did not request for a stay at all.

With reference to paragraph 10 of Resource Development Limited v. Swanbridge Limited HCA1873/2009, the Court held that in considering whether a stay should be ordered, it has to take into account what practical benefit there would be if the proceedings were stayed.

The Court satisfied that there were practical benefits for the parties in granting a stay of the proceedings pending mediation as the mediation, if successful, would save the substantial costs of the 13 parties for preparing their respective witness statements.

The Court therefore ordered that there be an interim stay of the proceedings from the date of filing and serving the Mediation Minutes until conclusion or termination of mediation.

 

Full decision of HCA 933/2011 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

 

 

 

 

 

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.

 

Prepare documents for Mediation

Dear all,

Prepare documents for 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 preparing documents for mediation.

 

During pre-mediation stage, mediator will ask the solicitors for the parties to provide documents of the case for preparation of the mediation session.

In considering what documents should be provided to the mediator, solicitors may take note of the following:

ü          The purpose of providing the documents is to support the explanation of the issues in dispute to be presented to the opposite party

 

ü          Limit the documents to be provided to a minimum, only those which can help establish the case background, establish your case and undermine the case of the other side and those documents which help the parties to achieve a settlement of the dispute should be provided

ü          Previous settlement negotiation letters should be provided to assist the mediator to understand the obstacles to settlement

ü          Expert reports for technical matters should be provdied to enable the mediator to understand the issues in dispute. Consider whether a summary or an abstract of the expert report may be sufficient

ü          Any confidential documents that need to be provdied may be sent to the mediator separately without copying the same to the opposite side or during caucus (private session)

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 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.