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.