On 22 June 2012, the Mediation Ordinance (the "Ordinance") was enacted in Hong Kong. In addition to providing a basic statutory framework for the conduct of mediations, the Ordinance confirms the prominence of mediation as a preferred alternative dispute resolution mechanism in Hong Kong.
The Ordinance has not technically come into operation as it is awaiting publication of a notice by the Secretary for Justice. By virtue of section 5(1), however, the Ordinance applies retrospectively to any mediation conducted in Hong Kong or to mediation agreements which provide that the Mediation Ordinance or Hong Kong law applies, other than specific conciliations or mediations which arise under other legislation identified in Schedule 1 of the Ordinance.
The Ordinance is almost identical to the Mediation Bill introduced to the Legislative Council on 30 November 2011. Its substantive provisions concern the definition of mediation and the scope of confidentiality of mediation communications. These points were discussed in our previous update: The Mediation Bill: Hong Kong Takes Another Small Step Forward.
The only amendment to the Mediation Ordinance is the added exception to the confidentiality of mediation communications where a person makes a disclosure for the purpose of seeking legal advice: section 8(2)(f) of the Ordinance.
Single Accreditation Body
The Ordinance does not provide for a single accreditation body for mediators in Hong Kong. However, during the meetings of the Legislative Council Bills Committee on the Mediation Bill, the Department of Justice advised the Mediation Task Force and its Accreditation Subgroup are working towards the establishment of the Hong Kong Mediation Accreditation Association Limited ("HKMAAL") which will be governed by a council made up of representatives of key mediation service providers in Hong Kong.
It is anticipated HKMAAL will become the sole accreditation body for mediators and the default appointing body where parties cannot agree on the appointment of a mediator. The Department of Justice have indicated HKMAAL may be established within this year.
The Ordinance creates a statutory framework for mediation in Hong Kong. It is a "work in progress" and is likely to be the subject of amendment when a single accreditation body is established, detailed guidelines for mediation are created, and as mediation in Hong Kong develops generally.