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This is an annotation to the new Mediation Ordinance.
This book provides the reader detailed information on multiple aspects of the Hong Kong Mediation Ordinance, including: the Ordinance’s background, structure, areas which the Ordinance covers and does not cover, etc. The book also contains a section-to-section commentary which is greatly supported with common law, relevant legislations, and other reference materials, and is aimed at broadening the reader’s perspective on the Ordinance and mediation’s development, particularly in Hong Kong.
Key Features & Benefits
a) Background to the Mediation Ordinance
In this part, the history of the Working Group on Mediation, its Report and the work of the subsequent Mediation Taskforce will be outlined along with their deliberations and consultations with the Hong Kong community. This is relevant in relation to interpretation of provisions and their intended meaning – particularly as the Ordinance is new and there has been no case law to interpret the provisions of the Ordinance.
b) What the Mediation Ordinance does not cover
The Mediation Ordinance is fairly short and is intended to provide a basic legal framework for professional mediation practice in Hong Kong. It is not intended to cover all aspects of mediation nor is it intended to cover all mediations. Accordingly, it is useful to set out the aspects of mediation that the Ordinance does not cover and also the reasons for this. Reference will be made to how these ‘other aspects’ of mediation are regulated in Hong Kong without going into great detail (e.g. general contract law regarding enforcement of mediated agreements or industry standards relating to mediator accreditation). It is conceivable that future editions of the proposed publication may develop this section further.
c) What the Mediation Ordinance does cover
This part will highlight the main features of the Mediation Ordinance, namely:
- setting a clear definition for mediation in Hong Kong
- identifying which mediators and which types of mediation practice fall to be regulated by the Ordinance
- domestic and cross-border mediation
- provision of support and assistance (eg representation) of parties in mediation
- confidentiality of mediation and exceptions to this
- non-admissibility of mediation evidence in subsequent proceedings and exceptions to this.
d) The structure of the Mediation Ordinance
The contents of the Ordinance fall into three main areas:
- definitions and application of the Ordinance
- procedural aspects of mediation such as provision of support and assistance in mediation
- confidentiality and admissibility of mediation evidence
e) Section-by-section commentary of the Mediation Ordinance
This part will set out the entire Mediation Ordinance section by section and offer a commentary on each section. Although the Mediation Ordinance has just been passed and there has been no case law interpreting it, there is a significant amount of material that can be drawn upon for commentary, for example:
- English and Hong Kong case law on aspects of confidentiality and admissibility of mediation evidence that are likely to indicate how the court will interpret the relevant provisions in the Ordinance;
- the provisions of the Arbitration Ordinance, where such provisions have formed the basis for a provision of the Mediation Ordinance, such as the provision on support and assistance of parties in mediation (section 7 of the Mediation Ordinance);
- Submissions made by various bodies and individuals (such as the Law Society, the Bar and various mediation organisations) during the period in which the Mediation Bill became an Ordinance.
- International mediation laws from which sections in the Mediation Ordinance were drawn.
This part will form the bulk of the proposed publication with the commentary on confidentiality and admissibility of mediation featuring as the most controversial theme with relevant case law worthy of discussion.
