'kon gres 2009 - LEADR's 10th international ADR conference

Mediation has been practiced in Hong Kong since the early 1980s; however, mainly within the field of family and the construction industry. General commercial mediation still remains in its infancy stages. The reasons for that are still unknown; some suggest that it is “more a reflection of prevailing attitudes amongst litigation lawyers and commercial litigants themselves.1

As a result, as pointed out by the Secretary of Justice of Hong Kong, Wong Yan Lung, legislators complained to the Judiciary Administrator about delays in court hearings.2 Wong Yan Lung therefore emphasised the application of mediation.

The pro-active mediation approach by the Secretary of Justice, as well as by the Chief Justice3,is reflected in the Civil Justice Reform (CJR). In February 2000, it was acknowledged with the appointment of a Working Party by the Chief Justice that the Civil Justice system and its civil rules and procedures of the High Court (and District Court) need to be reviewed.4

The Interim (2000) and Final Report (2004) explored ways of improving the cost-effectiveness of the system of civil procedure and of reducing complexity and delays in litigation by promoting out of court settlements such as mediation, which came into effect on 2 April 2009.5

In addition, an ADR (Alternative Dispute Resolution) Practice Direction (PD) has been recently issued, which will be enforced in January 2010. Both projects attempt to increase the ‘pick up’ number of mediations where the cases appear suitable. One approach, which has been successfully implemented by a number of other common law jurisdictions and supported by its judiciaries, is court-annexed mediation.

However, court -annexed mediation has been mentioned in the Reports but will neither be enforced by the new CJR nor the ADR PD. The question arises, whether mandatory mediation would have been advisable and whether alternative ways exist in order to increase the number of commercial mediations.

1 Alder, E., Mandatory Mediation for Commercial Disputes in Hong Kong, Hong Kong Lawyer, 2004 (June), at 87

2 Wong Yan Lung SC, JP, The Benefits of Mediation, Asian Dispute Review, HKIAC, Chartered Institute of Arbitrators, Hong Kong Institute of Arbitrators, Hong Kong Mediation Council, 2006 (July), at 100

3 Speech of the Chief Justice of Court of Appeal, Kwok Nang Li at the Ceremonial Opening of the Legal Year 2007, Cover story, Hong Kong Lawyer, The Official Journal of the Law Society of Hong Kong, 2007 (February), at 34

4 The practice and civil procedure in the District Court reflect those in the High Court, so that it was directed in 2005 by the Chief Justice that the legislative amendment of the civil justice reform should also apply to the District Court; Consultation Paper on Proposed Legislative Amendments for the Implementation of the Civil Justice Reform, Steering Committee on Civil Justice Reform, Judiciary, Hong Kong Special Administrative Region People’s Republic of China, 2004, at 2, paras 1.7, 1.8

5 www.civiljustice.gov.hk