Litigation is a process of dispute resolution which is familiar to lawyers.  It is important to point out the recent development of mediation in Hong Kong and a few key features of ADR so as to contrast it with litigation.

    Since the implementation of CJR in 2009, the culture of litigation in Hong Kong has undergone a fundamental change.  One of the most important changes is the proactive encouragement of the use of mediation as a form of ADR by the Judiciary.  CJ's speech at Ceremonial Opening of the Legal Year 2010:

    “Civil Justice Reform has been a major exercise.  Under the leadership of the Chief Judge of the High Court and with the support of judges and supporting staff, its implementation in April 2009 went smoothly.  But it will take some time for the Reform to fully settle in.  A central feature is active case management by the court.  In due time, this will bring about a change of culture in the conduct of litigation which would increase cost-effectiveness and ensure expedition.  Another key feature is the facilitation by the court of the settlement of disputes by encouraging parties to engage in mediation.  The relevant Practice Direction came into force on 1 January.  It is expected that mediated settlements satisfactory to the parties will significantly increase.  A Committee chaired by the Chief Judge is monitoring the working of the reformed system.”

    In ADR, parties can determine among themselves the procedures they wish to adopt.  However, in the process of litigation, parties have relatively little control over the outcomes in court proceedings.  It is because the process of litigation, which is much aware by lawyers, in court is highly formalized with a pre-determined set of procedures. 

    Although there are different models of mediation, they all share one common ground which is to facilitate negotiation or communication between parties by mediator.  An “Invitation to Mediate” is a common Pre-Action measure to facilitate negotiation or communication between parties in UK.  It has a similar goal to the Mediation Certificate required by Practice Direction 31 in Hong Kong although parties are only required to file the Mediation Certificate no later than 28 days after the close of pleadings. 

    Any person or parties are welcome to apply for an “Invitation to Mediate” from Hong Kong Professional Mediation Association (HKPMA) to be issued to their opposite side of a dispute.  If the other side is willing to join the mediation, both parties are free to appoint a mediator from any sources or organizations, including, HKPMA.  One has to bear in mind that HKPMA is always neutral and will not represent any parties in the disputes throughout the whole process.  It is the mediator, who is appointed by the parties in disputes, to help them to resolve their differences. If one takes a closer look at the “Invitation to Mediate”, he or she will find that words like, “represents” or “representing” are not used by HKPMA.  These kinds of words or wordings are commonly used by lawyers. 

    Not only shall HKPMA maintain a neutral position at all times, HKPMA will always remind parties in disputes on what are mentioned in Practice Direction 31 (PD31) shall they consider to bring their case to the courts of Hong Kong.  Paragraph 4, Part A of PD31 provides: “In exercising its discretion on costs, the Court takes into account all relevant circumstances.  These would include any unreasonable failure of a party to engage in mediation where this can be established by admissible materials….”

    And paragraph 4, Part A of PD31 goes further: “Legal representatives should advise their clients of the possibility of the Court making an adverse costs order where a party unreasonably fails to engage in mediation.”  Furthermore, Part II in Appendix B of PD31 requires solicitors confirm, in their personal capacity if: 
    (a) They have explained to their client the availability of mediation with a view to settling the dispute or part(s) of the dispute, and the respective costs positions of mediation as compared with the costs of the litigation.
    (b) They have explained to their client the Mediation Practice Direction.
    (c) The information set out under Part I is to the best of their knowledge and belief true and correct.

    In fact, it is not difficult to find that relevant rules and authorities on ADR are usually mentioned in the letter of “Invitation to Mediate” in UK.  This is taken as an approach, to the benefit of both parties, hoping that they would consider mediation as a means to resolve their differences before bringing their case to the court.

    To understand more about mediation and its benefits, you are always welcome to join our Advance Course on Mediation.  You could find some very useful information on our website: www.mediatorassociation.org.

    One should not challenge the primary aims & goals of CJR in Hong Kong.  CJ's speech at Ceremonial Opening of the Legal Year 2011:

    “The Civil Justice Reform took effect from April 2009.  The object of the Reform was to alter radically those procedural steps in civil proceedings that contributed to the two constant challenges that face any modern judiciary: delay and expense.  Its single most important objective was also to remind judges and legal practitioners alike (solicitors and barristers) of the fundamentals of the conduct of civil proceedings, that is, (1) the elimination of unnecessary procedures which do little to facilitate the just resolution of a dispute; and (2) the promotion of a just settlement as an alternative to court determination.  This reminder was seen to represent a change in culture, but it is essentially reverting to basics.”