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First, we mediate: Hong Kong’s Mediation Bill ripe for the picking

After public consultation, the Hong Kong Government’s Mediation Task Force has pushed the Mediation Bill forward to the Legislative Council for approval. The bill was gazetted on 18 November, 2011, and is scheduled to be tabled at the Legislative Council on 30 November, 2011.

The Mediation Bill aims to provide a regulatory framework that promotes and facilitates the resolution of disputes by mediation, and to protect the confidential nature of mediation communications from being disclosed or adduced as evidence in proceedings.

Significant changes

The new bill not only dovetails the existing requirements under Practice Direction 31, which requires mediation prior to civil proceedings in the Court of First Instance and the District Court (subject to certain exceptions), but it also provides a flexible framework intended to encourage parties to engage in mediation as an alternative means to resolve disputes.

More specifically, it seeks to provide legal certainty regarding confidentiality of mediation communications and the admissibility of mediation communications in evidence - where mediation communication is defined as: “anything said or done; any document prepared; or, any information provided, for the purpose of or in the course of mediation.” Effectively, the legislation will codify the common law protection of without prejudice privilege, granting higher statutory protection to parties in mediation.

This is made clear in clause 5 of the bill, which stipulates that the bill will apply to all mediation communications, including retroactively to completed mediations. Clause 8 creates the general restriction that mediation communications must not be disclosed by a person (subject to exceptions). While clause 9 also places restrictions on the admissibility of mediation communications as evidence in any proceedings, by requiring leave of the court or tribunal.

It is only in exceptional circumstances, that a person will be granted leave to disclose mediation communications, or to adduce mediation communications in any proceeding. Clause 10 stipulates the requirements that a court or tribunal will need to follow before granting leave for admitting mediation communications as evidence, namely:

1) Whether the mediation communication may be, or has been disclosed under clause 8(2);

2) Is it in the public interest, or in the interests of the administration of justice; and,

3) If there are any other circumstances or matters that the court or tribunal considers relevant.

The bill will also standardise the terminology and Chinese renditions for ‘mediation’ and ‘conciliation’, as much of the existing legislation has used both terms interchangeably.

Take home points

Confidentiality – parties will have more certainty in regards to mediation communications remaining confidential. However, parties should remain aware of their duty not to disclose mediation communications under the bill.

Admissibility – in order for mediation communications to be disclosed or used as evidence in any proceedings, a party will need to be granted leave by the court or tribunal.

Standardisation – the Chinese term for ‘mediation’ (調解) and ‘conciliation’ (調停) will be standardised under the definitions provided for in clause 2.

For more information please contact Paul Starr or Denis Brock.

Paul Starr is Practice Leader for Mallesons Asia DR/Infrastructure, and is an accredited mediator in Hong Kong and Singapore.

Denis Brock is a partner in the Hong Kong office of Mallesons Stephen Jaques. He specialises in commercial, corporate and regulatory litigation and arbitration, and has taken numerous disputes to mediation.

Disclaimer: Mallesons Stephen Jaques is licensed in China as a foreign law firm and, as is the case for all international law firms, we are not authorised to issue legal opinions on matters of Chinese law. This publication is only a general outline. It is not legal advice. You should seek professional advice before taking any action based on its contents.

 

​Who does this affect?

This will affect any organisation or individual conducting litigation or mediation in Hong Kong, possibly including organisations and individuals that rely heavily on dispute resolution in the APAC region.

​What do you need to do?

Familiarise yourself with the proposed legislation and the new changes to confidentiality of mediation communications.

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  • Jeffrey Gabriel-Yu - Casual Law Clerk | Email
 

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