Though commonly mediation is an optional method of resolving disputes between litigious parties, in Hong Kong, attending mediation is highly encouraged in most civil proceedings. Over the next few pages, Sylvia Siu JP, a Consultant from Hong Kong’s Sit, Fung, Kwong & Shum (SFKS), delivers a thorough analysis of the East Asian nation’s judiciary system, how far mediation has come through the years, the ins and outs of how mediation is carried out, and of hers and the firm’s thought leadership in developing the use of this ADR method in the region.
Having been at the heart of dispute matters since the start of your career; how would you say that disputes have evolved globally over the past decade? Has it affected your practice?
In the early years of my career as a lawyer, I mainly dealt with resolving commercial, construction, land & family disputes. In most cases, these disputes led to long and bitter legal proceedings that had lasting and damaging effects on the relationship between the parties. Alternative dispute methods such as mediation were rarely used then.
The litigious adversarial approach has gradually diminished. Parties now place considerations on confidentiality and costs before deciding whether to litigate. The global trend has evolved, and alternative dispute resolution (mediation, adjudication and arbitration) is now preferred over litigation. My practice has shifted to include handling arbitration and mediation instead of merely litigation proceedings.
Mediation has grown in popularity in recent years – how in particular would you say its use has changed in disputes throughout East Asia?
Mediation has definitely grown in popularity, throughout East Asia and not only in common law jurisdictions. In fact, the practise of mediation has been around for a long time in China. Two sayings can illustrate the Chinese preferred approach to dispute resolution.
One: “生不入官門 死不入地獄,” which can be translated as, “One would not go to court when one is alive, just as one would not want to go to hell when one dies.” Indeed, many who have gone through a long litigation process equate that experience with having gone to hell. The second is a popular Chinese idiom: “以和為貴,” meaning peace and harmony is of utmost value. The above saying and the idiom shed light on the Chinese mind-set and can explain why mediation is preferred over litigation in China and the Far East, and why the Western litigious culture is avoided, if possible. In the old days, disputes were often settled in China by referring the disputes to the local village elders, who would settle the disputes by local customs and laws of the locality. There were no enforcement issues as the parties would accept and abide by the elders’ decisions.
Nowadays, in Mainland China, parties are required to go through mediation before commencing court proceedings. Parties facing disputes can either go to ‘People’s Mediators’ or have specialized mediation judges conduct pre-litigation mediation. I was extremely honoured to have been invited to share the Western mediation skills and practice at the National Judges College in Beijing with judges from all over China attending. It is worth noting that judges who are assigned to perform the task of mediation will be barred from hearing the same disputes. A note: Mainland Chinese Judges tend to use evaluative style mediation contrasted with the facilitative style mediation generally practiced in Hong Kong.
You were one of the first to set up the Hong Kong Mediation Centre back in 2000, can you tell LM why?
I took the Advanced Mediation Course in 1999 when it was first offered in Hong Kong by the Accord Group from Australia. After taking the five day course, I was convinced that mediation should be the best way forward to resolve most civil disputes. Together with two friends who shared the same vision, we founded the Hong Kong Mediation Centre (HKMC) in 1999. We were the first to offer the mediation courses in our local dialect – Cantonese.
In 2007, I represented HKMC at the Inaugural 1st Conference of Asian Mediation Association (AMA) in Singapore. HKMC together with the Singaporean Mediation Centre, the Malaysian Mediation Centre, the Indonesian Mediation Centre and the Philippine Mediation Centre founded the AMA with the aim of providing the infrastructure for conflict management and dispute resolution for disputes in Asia. The AMA represented an unprecedented grouping of mediation centres in Asia, with combined resources of diverse and dissimilar cultures, providing access to a wide range of dispute resolution and conflict management services across jurisdictions. AMA saw the need to facilitate resolution of cross-border and / or cross-cultural business and commercial disputes by mediation.
The 2nd & 3rd AMA Conference were hosted by the Malaysian Mediation Center in Kuala Lumpur & HKMC in Hong Kong in 2011 and 2014 respectively. By the time of the 4th AMA Conference (the Conference) hosted by China Council for Promotion of International Trade (CCPIT) in Beijing in October 2016, membership of AMA expanded with mediation centres from Bahrain, Delhi, Fiji, India, Japan & Thailand. Over 300 mediators from Asia, Europe, Russia, Canada, USA attended the Conference which offered an excellent platform for attending mediators to share experience.
Could you tell LM about the legal infrastructure in support of mediation in Hong Kong?
In Hong Kong, mediation is now an integral step to the legal process. All litigation lawyers are required to inform clients of the option and desirability of resolving disputes by mediation. Although mediation was introduced as a voluntary process by Practice Direction 31 issued by the Judiciary, it is mandatory for all litigation lawyers to inform clients of the option and desirability of resolving disputes by mediation. Parties who refuse to or do not attempt mediation without good cause may be penalized with costs sanctions. Various other practice directions have since been issued by the Judiciary for different types of civil proceedings, such as Family, Personal Injuries, Employees’ Compensation, Probate and Administration of Estate and Compulsory Sale under the Land Ordinance. Additionally, the Mediation Coordinator’s Office has been set up at the High Court by the Judiciary to enable and assist the general public with the mediation process by providing them with informative videos and reading materials. The Joint Mediation Helpline Office located right next door helps interested parties to find mediators with suitable and appropriate prior experience in all areas of dispute.
To promote a culture of best practice and professionalism in mediation, the Hong Kong Mediation Accreditation Association Limited (HKMAAL) was established in 2012. It is tasked to set standards and accredit mediators, supervisors, assessors, trainers, coaches & other professionals involved in mediation in Hong Kong upon passing the assessments.
Mediation is now conducted in Hong Kong by trained mediators in a structured process, consistent with the preferred facilitative approach. The Mediation Ordinance has been enacted in 2013, to define amongst other matters the scope of confidentiality: mediators and parties to mediation are required to keep confidential all information generated in the course of mediation, save for the limited exceptions listed in the Ordinance. Parties are prohibited from submitting documents obtained during the mediation process as evidence in subsequent proceedings should settlement fail.
Besides being a quick and cost-effective solution to disputes, what would you say are the other benefits for companies in choosing this method of ADR?
In choosing mediation, the potential benefits are, to name a few:
- Companies can avoid the complex, expensive litigation, anxiety and distractions to their staff and to its operation.
- In mediation, parties can agree the settlement outcome , instead of having a judgment handed down by court. Since parties make their own decisions, they are more willing to perform the settlement terms.
- Since mediation is confidential, it allows companies to avoid negative press coverage, and to prevent risks such as leaking of trade secrets and irreparable damage to both business reputation and relationships.
- Mediation is a less formal process with a more relaxed environment to resolve differences as compared to the strict formal atmosphere of the court which includes cross-examination of witnesses.
- Mediators are trained to be sensitive and responsive to the needs of the parties, and they are more able to explore options for the parties to find ways acceptable to all, which can be beyond legal remedies.
How is mediation conducted in Hong Kong nowadays?
Nowadays, mediation is conducted in a much more structured way; mediators are trained and accredited. The mediator, an independent third party would facilitate the mediation process, with private session and joint sessions, and would observe confidentiality and use of mediation skills such as reframing, BATNA & WATNA, various questioning techniques.
How did mediation in Hong Kong become vibrant so quickly?
I remember fondly the speech given by the then Chief Justice Mr. Andrew Li SC at the Commencement of Legal Year in 2008, in which he said that mediation is complementary to litigation, and its promotion is plainly in the public interest. For the parties, it means reduction in stress, saving of time and costs, satisfactory resolution; for society, economic and social benefits, alleviating conflict and achieving harmony. Such benefits are increasingly recognized in Hong Kong. Its promotion is a matter of Government policy and legal aid funds should be available.
He thought then that we would have a long way to go before mediation reaches a state of maturity but he recognized that momentum was gathering pace.
Chief Justice Mr Andrew Li SC did not then anticipate that within 10 years from his speech, the mediation scene in Hong Kong would be so vibrant. Of course, much has been done by the Judiciary, Department of Justice, the stakeholders in mediation as well as the Hong Kong Government to promote mediation.
The Judiciary set up a Working Party on Mediation in 2006 chaired by the Hon. Mr Justice Johnson Lam , with members made up of representatives from the Law Society, Bar Association, Consumer Council , Legal Aide Department, Hong Kong International Arbitration Centre, HKMC and judges. The Working Party aimed to consider how consensual mediation of civil disputes in High Court, District Court and Lands Tribunal may be facilitated.
The Department of Justice set up a Mediation Steering Committee with membership consisting of the Secretary for Justice (as Chair) and members from representatives of the Judiciary, HKMC, Law Society, Bar Association, Law Schools, Legal Aid Department, Hong Kong International Arbitration Centre & major mediation stakeholders.
Mediation Conferences are organized annually by the Department of Justice to educate the general public of the advantages in resolving disputes by mediation in appropriate cases. Hong Kong’s Government also promotes mediation by providing free venues for mediation.
Would you say mediation suits certain types of dispute more than others? What types of disputes are more suitable to be resolved via this method? Why?
I believe that mediation suits most civil cases, particularly where there is an element of human relationships in matters such as family, probate, or shareholder disputes. In addition, commercial cases are often suitable where parties want to have a cost effective and speedy resolution.
Mediation is a neutral process involving an unbiased mediator, allowing the matters to be kept confidential, and both parties can appoint and approve the mediator giving both parties a sense of control over the outcome.
Is there any legislation Hong Kong is working towards implementing or exploring further in the realm of mediation?
Yes, there is a consultation paper on the enactment of Apology Legislation in Hong Kong, I strongly believe that it would be conducive to the success of mediation if one party could say the magic words “I am sorry,” without the fear that it will be taken as evidence in future litigation.
How are you currently working to progress the adoption of mediation as an ADR method in East Asia?
Working with different organisations in East Asia in promoting mediation as an alternative dispute resolution method has been rewarding. My involvement has been diverse: Vice Chair of the Guangzhou, Hong Kong; Macao Mediation Alliance; the Alternative Dispute Resolution chair of the Hong Kong Federation of Women Lawyers; the Vice Chair of Nansha International Arbitration Centre in Nansha District, Guangzhou, PRC; and the Founder of the Hong Kong Mediation Centre which is founding member of Asian Mediation Association. Holding various positions has enabled me to broaden my knowledge, deepen my belief that mediation can bring benefits to a wide variety of disputes, thus equipping me to meaningfully and passionately share and promote mediation.
I was also honoured to be the Asian representative at the World Mediation Forum, lectured at National Judges College in Beijing, Dongguan Court, Tsinghua University etc, and have spoken at many international conferences relating to mediation.
Being involved in different jurisdictions has exposed me to various cultures and local customs. Despite the differences, there is always one thing in common between the countries in the East Asian region – in most cases involving mediation, the parties want to actively solve the problem together; and that bodes well for the future of mediation.