Law and policy

Definitions

Is there any legal definition in your jurisdiction of the terms ‘ADR’, ‘conciliation’ and ‘mediation’?

The Bar Association of Hong Kong defines ADR as ‘a voluntary and private dispute resolution process in which the parties agree to appoint a neutral third party to assist them to settle or resolve their dispute’.

Mediation Ordinance Cap 620

Section 4: Meaning of mediation

(1) For the purposes of this Ordinance, mediation is a structured process comprising one or more sessions in which one or more impartial individuals, without adjudicating a dispute or any aspect of it, assist the parties to the dispute to do any or all of the following -

(a) identify the issues in dispute;

(b) explore and generate options;

(c) communicate with one another;

(d) reach an agreement regarding the resolution of the whole, or part, of the dispute.

The definition of mediation by the Judiciary of Hong Kong, the Hong Kong International Arbitration Centre (HKIAC) and the Hong Kong Mediation Accreditation Association Limited (HKMAAL) are similar:

Mediation is a voluntary, confidential and private dispute resolution process in which a neutral person, the mediator, helps the parties to reach their own negotiated settlement agreement. The mediator has no power to impose a settlement.

It should be noted that Schedule 1 of the Mediation Ordinance states that the Ordinance does not apply to conciliations referred to or described in eight other Ordinances.

Mediation models

What is the history of commercial mediation in your jurisdiction? And which mediation models are practised?

When the new Hong Kong Airport Core Projects (ACP) was commenced (in the 1980s) to build the new Hong Kong International Airport at Chep Lap Kok, Lantau Island, the contracts related to ACP incorporated a ‘mediate then arbitrate’ clause. Several dozen cases were mediated, with about 70-80 per cent success. The General Conditions of Contract of the government of Hong Kong have, since the 1990s, included a similar clause for all building and infrastructure works.

Between 2000 and 2003, the Family Court of Hong Kong started the first family mediation scheme with a Practice Direction of the Court (PD 15.10). There were about 1,000 mediated cases during the three years, with almost 80 per cent of the cases resulting in full or partial settlement. Its resounding success led to more pilot schemes using Practice Directions.

Following the footsteps of the Civil Justice Reform (CJR) in England by Lord Woolf in 1996, the CJR Working Party was established in Hong Kong in 2000. Its final report was published in 2004. The Civil Justice (Miscellaneous Amendments) Bill was passed into law in 2008 and came into force on 2 April 2009.

The Chief Justices Working Party on Mediation was set up in 2006 to consider how consensual mediation of civil disputes in the Court of First Instance, the District Court and Lands Tribunal may be facilitated.

A Working Group on Mediation was set up by the Department of Justice (DOJ) in 2008 to review the current development of mediation and provision of mediation services in Hong Kong. Its report was published in February 2010 and had 48 recommendations that outlined the preliminary development of mediation in Hong Kong. A ‘Mediation Task Force’ was set up by the DOJ in 2010 to implement the 48 recommendations.

Practice Direction 31 (PD 31) on mediation generally was implemented as part of the CJR in Hong Kong (effective 2 April 2010).

The Mediation Ordinance (January 2012) and the formation of HKMAAL in 2012 were the result of the 48 recommendations.

Commercial mediation gradually gained popularity since 2010.

The ‘facilitative’ style of mediation is most commonly used in Hong Kong. The Mediation Ordinance alludes to this style and defines the mediator’s role as one ‘without adjudicating a dispute or any aspect of it’. The Mediation Code (adopted by the HKMAAL, HKIAC, Law Society and most professional associations and presently under review) itself is silent, though the annexed Agreement to Mediate clearly defines the mediation process as synonymous with that of a ‘facilitative mediation’.

It would seem that the parties and the mediator would have to opt out of the Mediation Ordinance (if that is possible) to conduct an ‘evaluative mediation’ and to redraft the role of the mediator in the Agreement to Mediate as that of an ‘evaluative mediator’. Another alternative might be to just rename that procedure without attaching the word ‘mediation’ to the ‘process’. As the Mediation Ordinance only came into effect in 2013, there are as yet no cases on this topic.

The DOJ and the Intellectual Property Department of the government of Hong Kong have, since late 2015, been promoting Hong Kong as an intellectual property trading hub as well as promoting ‘evaluative mediation’ as one of the methods for resolving intellectual property disputes as an alternative to ‘facilitative mediation’. It is presently unclear as to which model of evaluative mediation is being considered - whether facilitation is first attempted before the ‘evaluative mode’ or if it is more akin to an ‘early neutral evaluation’ (ENE). It seems that the government is leaning more towards an ENE approach and labelling it as an ‘evaluative mediation’.

Transformative mediation is not prevalent in Hong Kong.

Domestic mediation law

Are there any domestic laws specifically governing mediation and its practice?

Hong Kong is known as an international dispute resolution centre and has enacted the Mediation Ordinance applicable to both domestic and international mediations. It came into effect on 1 January 2013. Although there is no civil procedure legislation related to mediation in force, the Judiciary of Hong Kong has issued nine practice directions (see http://mediation.judiciary.gov.hk/en/practice_directions.html for complete list) for the conduct of various court proceedings related to mediation. The most significant ones related to business activities are PD) 31, PD 3.3 (winding-up of corporations) and PD 6.1 (construction and arbitration list).

Sections 32 and 33 of the Arbitration Ordinance provide for mediation after arbitral proceedings have commenced. The arbitrator can, with the consent of the parties, act as the mediator in the mediation. In the event that mediation does not arrive at a settlement, the mediator may act as the arbitrator of the same dispute (under certain circumstances). This section is modelled on the UNCITRAL Model Law on International Commercial Arbitration.

It should be noted that Schedule 1 of the Mediation Ordinance states that the Ordinance does not apply to ‘mediation proceedings’ referred to in sections 32 and 33 of the Arbitration Ordinance.

Singapore Convention

Is your state expected to sign and ratify the UN Convention on International Settlement Agreements Resulting from Mediation when it comes into force?

China was one of the 46 signatory nations of the Singapore Mediation Convention on 7 August 2019. Ratification is likely in future though

China’s present laws on commercial mediation may have to be revised to complement the Convention.

Hong Kong is a Special Administrative Region of China and not a separate state. This Convention can only come into effect for Hong Kong when China becomes a member state to this Convention.

Incentives to mediate

To what extent, and how, is mediation encouraged in your jurisdiction?

There are no mandatory provisions for mediation in Hong Kong. Mediation is conducted on the voluntary willingness of the parties. PD 31 has provisions for litigants to initiate mediation proceedings. Any legally represented party to a litigation can give notice to the other parties of their intention to resolve the case by mediation.

In Hong Kong, the court has the discretion to award costs to the successful party. Under PD 31, the court also has the discretion to make an ‘adverse costs order against a party on the ground of unreasonable failure to engage in mediation’. Although PD 31 does not impose mandatory mediation on parties, the practical effect is that parties (under legal advice of their solicitors and encouragement by the court) are more likely to attempt mediation to avoid the possibility of an adverse costs order under PD 31.

Sanctions for failure to mediate

Are there any sanctions if a party to a dispute proposes mediation and the other ignores the proposal, refuses to mediate or frustrates the mediation process?

PD 31 encourages parties to mediate through ‘adverse costs orders’. See question 5.

Prevalence of mediation

How common is commercial mediation compared with litigation?

Initiating litigation is still the most common method of resolving commercial disputes. Although the author has mediated commercial disputes prior to parties initiating litigation procedures, those represent approximately 6 per cent of the mediations conducted. There are no available statistics on litigation of commercial disputes or the number of commercial mediations or its growth. It is likely that most commercial mediations in Hong Kong result from PD 31 (see questions 5 and 6) though it cannot be said they are totally voluntary or court directed.

Mediators

Accreditation

Is there a professional body for mediators, and is it necessary to be accredited to describe oneself as a ‘mediator’? What are the key requirements to gain accreditation? Is continuing professional development compulsory, and what requirements are laid down?

There are no regulations in Hong Kong regarding qualifications of mediators, their accreditation or describing oneself as a mediator. In theory, any person whom the parties trust can be appointed by them as their mediator (subject to the confidentiality requirements of the Mediation Ordinance).

The first institution in Hong Kong to accredit English-speaking mediators in the early 1980s was the HKIAC through its branch, the Hong Kong Mediation Council. The Hong Kong Mediation Centre (HKMCentre) began to accredit Cantonese-speaking mediators around 2000. The Law Society of Hong Kong began to accredit mediators in the early 2000s.

To consolidate the accreditation of mediators in Hong Kong, the HKMAAL was established in 2012 by the Law Society of Hong Kong, HKIAC, Bar Association and HKMCentre as founding members with the encouragement and support of the judiciary and various departments of the government of Hong Kong (Recommendation 25 of the Working Party on Mediation set up by the DOJ to establish a single mediator accreditation body in Hong Kong).

The HKMAAL has seven corporate members: CEDR Asia-Pacific, Hong Kong Institute of Arbitrators, Hong Kong Institute of Architects, Hong Kong Institute of Construction Managers, Hong Kong Institute of Surveyors, Hong Kong Institution of Engineers, and Professional Mediation Consultancy Centre Limited.

All founding and corporate members of the HKMAAL have undertaken to abide by its accreditation criteria.

The HKMAAL is the premier mediator accreditation organisation in Hong Kong. Its mission is to set standards for the accreditation of mediators and training courses and to ‘promote a culture of best practice and professionalism in mediation in Hong Kong’.

Since the advent of PD 31 in 2010 (see question 3), many more mediation-related institutions have popped up.

The HKMAAL approves and accredits English and Chinese mediation training courses conducted by third-party providers. The HKMAAL imposes strict experience requirements for lead trainers, assistant trainers and coaches. The course must be at least 40 hours and include negotiation skills and mediation dynamics, relationship and communication skills, a facilitative process model, intake and ethics.

Accreditation for an HKMAAL-accredited mediator (general) includes the following:

  • completion of HKMAAL-approved mediation training course (at least 40 hours);
  • mediation of at least two HKMAAL simulated general (non-family) mediation cases (in either English or Cantonese). The applicant must be assessed to have achieved an acceptable level of competence in two cases; and
  • submission of an application (the applicant must have three years’ full-time working experience, and may require an interview or further conditions).

The institutions that accredit mediators or maintain a panel of mediators will have continuing professional development (CPD) requirements. Generally, five CPD points (usually one point per hour of study) are required each year. The HKMAAL and the Law Society require a mediator on their panels to accumulate 15 CPD points over three years. The HKIAC requires 20 points over four years.

The HKMAAL has approximately 1,700 accredited general mediators and 220 accredited family mediators on its registers. Its founding members, corporate members and other organisations also maintain their own registers of mediators.

Liability

What immunities or potential liabilities does a mediator have? Is professional liability insurance available or required?

The Mediation Ordinance does not mention liability of mediators. Section 104 of the Arbitration Ordinance provides that a mediator is only liable in law for dishonesty for an act done or omitted to be done.

The Mediation Code is also silent on the liability of a mediator and puts the onus on the mediator to consider whether professional indemnity insurance is appropriate (section 6). An early draft of the review of the Mediation Code seems to suggest that liability insurance for all mediators might be the future direction. The annexed Agreement to Mediate clearly excludes liability, except for fraudulent acts or omissions (section 18).

The Mediation Rules of the HKIAC (section 15) and that of the Law Society (section 14) exclude liability except for acts or omissions ‘as the consequences of fraud or dishonesty’.

It is up to the individual mediator to obtain professional indemnity insurance and many mediators do not have coverage due to the high cost and low risk. The Law Society’s professional indemnity insurance covers solicitors acting as a mediator if that activity forms part of the legal practice of their firm. That maximum coverage is HK$10 million per case. Some firms may have additional coverage.

It is wise to enquire if a prospective mediator might have professional insurance prior to their appointment.

Mediation agreements

Is it required, or customary, for a written mediation agreement to be entered into by the parties and the mediator? What would be the main terms?

The Mediation Ordinance defines an ‘agreement to mediate’ as being in writing. It would be impractical for a mediator to commence a mediation before this agreement is finalised and signed.

The Mediation Code provides a sample ‘agreement to mediate’. The object of this agreement is to appoint the mediator and bind the parties to mediate on mutually agreed terms.

The sample is comprehensive and provides for the following:

  • appointment of the mediator;
  • the role of the mediator;
  • conflict of interest;
  • the mediator’s fees;
  • role and responsibilities of parties and mediator;
  • cooperation by the parties;
  • authority to settle and representation at the mediation session;
  • communication between the mediator and the parties;
  • confidentiality of the mediation;
  • termination of the mediation;
  • settlement of the dispute;
  • exclusion of liability and indemnity;
  • compliance with the Mediation Code;
  • cost of the mediation;
  • legal status and effect of the mediation; and
  • full disclosure.
Appointment

How are mediators appointed?

Section 32 of the Arbitration Ordinance allows the HKIAC to appoint a mediator only in the case where there is an arbitration agreement that provides for the appointment of a mediator. No other institution has a similar statutory power of appointment of a mediator. If the parties’ agreement to mediate does not have a suitable mediator appointment clause (deferring to the head of a professional body, such as the Law Society of Hong Kong or the HKIAC), then the parties either choose their own mediator or consent to a specific institution to appoint the mediator.

The HKMAAL does not, at the present time, have the mandate to appoint mediators. The Steering Committee on Mediation (set up by the DOJ) is reviewing the present accreditation regime. A possible outcome might be the evolution of the present HKMAAL into a statutory body with appointment powers.

The Joint Mediator Helpline Office (JMHO - set up in 2010 by eight professional institutions to promote mediation) indirectly appoints mediators via an appointment by its founders: the HKIAC, the HK Bar Association, the Law Society of Hong Kong, the Chartered Institute of Arbitrators (East Asia Branch), the Hong Kong Institute of Arbitrators, the Hong Kong Institute of Architects, the Hong Kong Institute of Surveyors and the HKMCentre.

Conflicts of interest

Must mediators disclose possible conflicts of interest? What would be considered a conflict of interest? What are the consequences of failure to disclose a conflict?

The Mediation Ordinance defines a mediator as ‘impartial’. Section 2 of the Mediation Code also uses the same word and requires the mediator to disclose ‘any affiliations/interests which the mediator may have or had with any party’.

The Mediation Rules of the HKIAC and the Law Society are similar. Section 6 of both rules provide for the disqualification of a mediator where there is any financial or personal interest and requires written disclosure (‘any prior dealings with either of the parties or any circumstances likely to create a presumption of bias or prevent a prompt resolution of the dispute’) to and consent from the parties.

Based on the above, a conflict might arise under the following circumstances: previously acting for one of the parties; holding shares in a corporate party or its associated company; close family or social ties with one of the parties.

Mediators in Hong Kong tend to ‘over-disclose’ potential conflicts of interest as a matter of caution. It would be prudent for a mediator to voluntarily withdraw in the event any party questions his or her neutrality.

The various mediation institutions all have disciplinary procedures for removing a mediator from its panels. It would be up to the parties to bring their own tortious action against the mediator.

The author has conducted many mediations even after full disclosure of obvious conflicts of interest - provided the parties agree and accept that the author is willing and able to conduct the mediation in a fair and unbiased manner.

Fees

Are mediators’ fees regulated, or are they negotiable? What is the usual range of fees?

There is no legislation on a mediator’s fees. The Hong Kong Mediation Code does require the mediator to describe in writing the fees for the mediation and not to charge contingent fees or base the fees upon the outcome of the mediation. Similar provisions are found in the HKIAC and HK Law Society’s Mediation Rules.

Mediator fees for commercial mediation can be negotiated and vary according to the experience and seniority of the mediator, ranging from US$250 to US$500 and even upwards of US$1,000 per hour. Some mediators charge on a per-case basis for simple cases. Some might charge a daily or flat rate. There are mediation schemes (for defined types of cases) that have fixed fees for the case or by the hour. These schemes are usually designed for consumer-related matters.

Procedure

Counsel and witnesses

Are the parties typically represented by lawyers in commercial mediation? Are fact- and expert witnesses commonly used?

There are no restrictions regarding party representatives and third parties (including experts) attending as long as all the parties consent and the attendees sign a confidentiality undertaking. Lawyers are usually present for more complex mediations and absent otherwise to save legal costs.

Fact witnesses are seldom present during a mediation meeting. Expert witnesses might be present in very complex cases.

Procedural rules

Are there rules governing the mediation procedure? If not, what is the typical procedure before and during the hearing?

There are no rules governing the mediation procedure.

The facilitative style of mediation is promoted in Hong Kong. The Mediation Code and the assessment criteria of HKMAAL use the facilitative mediation model.

For commercial mediations, the mediator will usually meet privately with the parties after his or her appointment has been finalised and a retainer received. Bundles of documents will already have been prepared for the mediator to review. The parties may agree on the document list prepared for the mediator and each party sometimes prepares a confidential brief for the mediator. Alternatively, each of the parties might prepare their own bundle and mark certain documents as ‘confidential’.

At the private meeting, the mediator would explain his or her role and what the parties might expect at the mediation. The parties will be reminded to prepare the relevant authorisations for those attending the mediation and undertakings of confidentiality. This meeting might touch on some of the merits of the case and is primarily used by the mediator to explain the process, assess the personalities of the negotiating team and understand a bit more of their positions.

The common mediation process model used in Hong Kong is as follows:

  • introduction stage (opening statement of mediator and the parties);
  • exploration stage (initial discussion, common ground or issues, identification of issues, prioritised agenda, discussion of each agenda item (seek objective criteria, options));
  • negotiation stage (initial negotiations, private sessions (underlying issues, reality checking), final negotiations); and
  • settlement stage (analyse if solutions are workable, record in writing).

A simple mediation could be completed within half to one day. A more complex mediation where the parties are keen to settle might take two or more days. Mediations can also be adjourned to allow parties to provide more information.

Tolling effect on limitation periods

Does commencement of mediation interrupt the limitation period for a court or arbitration claim?

No. A court or arbitration claim must be initiated before the expiry of the limitation period.

Enforceability of mediation clauses

Is a dispute resolution clause providing for mediation enforceable? What is the legal basis for enforceability?

ADR clauses are commonplace in Hong Kong for arbitrations. Mediation clauses (mediate first then arbitrate) are starting to gain recognition, but are not often used. Even if a mediation clause is present, without a mandatory system of mediation in Hong Kong, such a clause merely reminds the parties that mediation is an option. Even if the courts were to enforce such a clause, an unwilling party can simply attend the mediation meeting and not participate.

Confidentiality of proceedings

Are mediation proceedings strictly private and confidential?

One of the objects of the Mediation Ordinance is: ‘to protect the confidential nature of mediation communications’ (section 3(b)). The Ordinance clearly states that all ‘mediation communications’ (other than the agreement to mediate or the settlement agreement - section 5) cannot be disclosed except where allowed (section 8(1)). This includes the parties’ consent, when imposed by law, to prevent danger of injury to a child or for seeking legal advice (section 8(2)).

With the leave of the court or tribunal (by application under section 10), section 8(3) further allows disclosure ‘for the purpose of enforcing or challenging a mediated settlement agreement’, where there is a complaint against a mediator or other justifiable purpose.

These are the usual exceptions in most common law jurisdictions.

One notable exception is disclosure 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’ (section 8(3)(f)). The Hong Kong government seems anxious to be able to compile statistics on mediation.

No sanctions are imposed by the Ordinance if a mediator breaches confidentiality. Parties who might feel aggrieved would have to defer to common law to seek regress.

Mediation institutions such as the HKMAAL, HKIAC, Law Society and HKMCentre have published ethical and disciplinary rules for mediators on their panels. No reported cases have been published.

Success rate

What is the likelihood of a commercial mediation being successful?

Mediation is more pervasive in the District Courts (approximately 2,900 cases) and Court of First Instance (approximately 5,000 cases) between 2011 to 2018. Approximately 45 per cent of all mediations result in full or partial settlement. No separate statistics are available for commercial cases.

Personal injury cases form a significant percentage of mediation cases and their settlement rates are generally higher. Consequently, settlement rates for commercial cases are likely to be less than 40 per cent.

Settlement agreements

Formalities

Must a settlement agreement be in writing to be enforceable? Are there other formalities?

The mediation settlement agreement is a legally binding contract with the requisite contractual formalities. Its enforceability is that of any legally binding contract in Hong Kong. The parties can also consent to the court making an order based on the terms of settlement.

In the case of an arbitral proceeding, the parties can also consent to the Arbitral Tribunal making a consensual award based on the terms of settlement (section 66(1) of the Arbitration Ordinance, which is a verbatim quote from article 30 of the UNCITRAL Model Law). In the event that the parties prepare and enter into a written settlement agreement, section 66(2) of the Ordinance deems that agreement to be an arbitral award for the purposes of enforcement.

Challenging settlements

In what circumstances can the mediation settlement agreement be challenged in court? Can the mediator be called to give evidence regarding the mediation or the alleged settlement?

It is difficult to revise, withdraw or challenge the final settlement agreement unless there is compelling evidence. In the first Champion Concord case (Champion Concord Ltd and Craigside Investments Ltd v Lau Koon Foo and the District Lands Officer, Sai Kung (unreported), FACV Nos. 16 and 17 of 2010, 27 May 2011)), the Appeal Committee refused an application for an appeal to the Court of Final Appeal (CFA) on the basis that it was an attempt to ‘start the litigation all over again’ and 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’.

In the second Champion Concord case (Champion Concord Ltd and another v Lau Koon Foo and another (FACV Nos. 16 and 17 of 2010)), the CFA held that ‘the language of the agreement was clear and left no room for doubt as to the parties’ understanding’.

The Mediation Ordinance protects the confidentiality of mediation proceedings in Hong Kong. With the leave of the court or tribunal (by application under section 10), section 8(3) of the Ordinance allows disclosure ‘for the purpose of enforcing or challenging a mediated settlement agreement’. Under the above circumstance, a mediator may be called to give evidence.

Enforceability of settlements

Are there rules regarding enforcement of mediation settlement agreements? And on what basis is the mediation settlement agreement enforceable?

Mediation settlement agreements are enforceable as a contractual agreement between the parties. There are no regulations in Hong Kong that give them special status.

Stays in favour of mediation

Duty to stay proceedings

Must courts stay their proceedings in favour of mediation?

Clause 16 of PD 31 of the High Court provides that:

The Court may, on the application of one or more of the parties or of its own motion, stay the proceedings or any part thereof for the purpose of mediation for such period and on such terms as it thinks fit, bearing in mind the importance of avoiding so far as possible, disruption to the milestone dates and of avoiding, save in exceptional circumstances, any postponement of the trial dates.

Section 33 of the Arbitration Ordinance provide for mediation after arbitral proceedings have commenced. The arbitrator can, with the consent of the parties, act as the mediator in the mediation. In that event, the arbitral proceedings must be stayed. No mention is made when the mediator is not the arbitrator. Presumably, the parties could make an application to stay the arbitral proceedings.

Miscellaneous

Other distinctive features

Are there any distinctive features of commercial mediation in your jurisdiction not covered above?

The following are new trends emerging for commercial mediation in Hong Kong.

Apology legislation

The Steering Committee on Mediation conducted two rounds of consultations (2015 and 2016) on an ‘apology’ legislation, following in the footsteps of Australia, Canada, the UK and the US (adopted by most of their respective provinces or states). Research has shown that ‘apologies’ can be very effective in enhancing resolution or settlement - particularly for personal injuries and healthcare disputes. There is no reason why this approach cannot be extended to commercial disputes.

Hong Kong is the first jurisdiction in Asia to legislate an Apology Ordinance gazetted on 20 July 2017 and in operation on 1 December 2017. Section 2 states: ‘The object of this Ordinance is to promote and encourage the making of apologies with a view to preventing the escalation of disputes and facilitating their amicable resolution’.

Under section 4, an apology means: ‘an expression of the person’s regret, sympathy or benevolence in connection with the matter’ and ‘the expression may be oral, written or by conduct’.

Section 7 clarifies that the ‘Effect of apology for purposes of applicable proceedings. . . does not constitute an express or implied admission of the person’s fault or liability’ and ‘must not be taken into account in determining fault, liability. . . to the prejudice of the person’.

Section 10 (Contract of insurance or indemnity not affected) explains that ‘An apology made. . . does not void or otherwise affect any insurance cover, compensation. . . under a contract of insurance or indemnity’.

This legislation is a major step made by the government to further promote Hong Kong as an international dispute resolution centre in the Asia-Pacific region.

Co-Mediation

The Mediation Ordinance recognises co-mediation (section 4(1)). There is no information available to ascertain if it is regularly used in Hong Kong. With the consent of all parties, an intern of the appointed mediator may also be present. In this case, the intern is present more as an observer than as a co-mediator.

This author has conducted numerous complex international cases where a team of up to three mediators were present - each with their respective role as a ‘subject expert’, to assist with observing the parties’ reactions during the mediation, by note-taking and conducting private sessions with parties. Co-mediation is useful when certain technical knowledge, expertise or language is required in subjects that no single mediator can be expected to possess.

In 2019, the DOJ and the Judiciary set up the West Kowloon Mediation Centre (WKMC) to conduct a Small Claims Mediation Pilot Scheme Mediator Mentorship Scheme (MMS). Parties pay a very minimal fee of HK$200 per party per case. The case is mediated by an experienced mediator who also acts as a mentor to a junior mentee mediator. This arrangement can be considered a kind of ‘co-mediation’.

The JMHO has been appointed as the independent coordinator to operate the WKMC and the MSS.

Update and trends

Opportunities and challenges

What are the key opportunities, challenges and developments which you anticipate relating to mediation in your jurisdiction?

Opportunities and challenges 25 What are the key opportunities, challenges and developments which you anticipate relating to mediation in your jurisdiction?Third-party funding for mediation

The Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Ordinance 2017 (Ordinance No. 6 of 2017) was gazetted on 22 June 2017 and only the portion related to Third Party Funding of Arbitration came into force on 1 February 2019. It is described as ‘An Ordinance to amend the Arbitration Ordinance (add new Part 10A (sections 98E to 98W to CAP 609) and the Mediation Ordinance (add new section 7A to Cap 620) to ensure that third-party funding of arbitration and mediation is not prohibited by the common law doctrines of maintenance and champerty; and to provide for related measures and safeguards’. This was the result of a public consultation by the Law Reform Commission of Hong Kong (from 2013 to 2016) recommending third-party funding for arbitration in Hong Kong. Consequently, these provisions apply only to mediations arising out of sections 32 and 33 under the Arbitration Ordinance.

Online dispute resolution

The HKIAC has online dispute resolution (ODR) mechanisms using ‘documents only’ arbitration for resolving disputes for domain names, registry transfers, internet keywords and wireless keywords.

Hong Kong is listed as a participating country for ODR exchange on its website. No published information is available.

The eBRAM Centre (Electronic Business-Related Arbitration and Mediation) was set up in 2018 and now funded by the Hong Kong government to develop an eBRAM Platform for deal-making and dispute resolution including through negotiation, arbitration and mediation within the Greater Bay Area and Belt & Road countries for online deal-making and resolving commercial and investment disputes.

No data is available for eBRAM for online mediation in Hong Kong.