Mediation Center

Members

Hong Kong Mediation Centre


The Hong Kong Mediation Centre (HKMC) was started by three leading mediation advocates and pioneers. In 1999 it was established as a company limited by guarantee. It is recognized by the government of the Hong Kong Special Administrative Region of the People’s Republic of China as a charitable institution.

The HKMC is unique among other mediation centers in Hong Kong in that offers mediation in both English and Chinese. HKMC offers mediation services in a wide range of disputes, including in all aspects of commercial disputes.

Mediators

HKMC mediators comprise a wide range professional with different specializations and from different industries. Its three founders are Maurice Lee JP and Sylvia Siu JP, both solicitors qualified to practice in the United Kingdom, Hong Kong, Australia, and Singapore; and Raymond Leung, an engineer by training and CEO of C&L Holdings Ltd. Its website offers a list of mediators and their professions.

Terms of Mediation

Prior to the commencement of mediation, parties must sign an Agreement to Mediate which preserves, inter alia, the confidential nature of the mediation.

Legal System of Hong Kong1

The Hong Kong Special Administrative Region of the People’s Republic of China came into existence in 1 July 1997. The legal system established before 1 July 1997 was modeled on the British common law system. Post 1997, there is a high degree of continuity in the laws of Hong Kong. The English common law system remains, as does much of its legislation.

Attitudes towards Mediation2

Hong Kong is a unique blend of traditional Chinese and the cosmopolitan Chinese. The Chinese legal system has traditionally incorporated mediation, but this is a traditional form of mediation, usually conducted by judicial or authority figures rather than the modern form of interest based mediation. Under British rule, Hong Kong commercial practice had a more western approach. With the reversion of sovereignty to China, and the preservation of the historically English legal system, mixed with the view of Hong Kong as the entry way to China, approaches to mediation will vary between industries and individuals.

While there does not appear to be specific legislation promoting mediation in Hong Kong, mediation is a recognized form of dispute resolution in some legislation, including the Ombudsman Ordinance Cap. 397 (for complaints relating to public sector maladministration), and the Labour Relations Ordinance.

Since 1999, the Hong Kong Government has implemented a mediation clause as a special condition of contract in all large building and civil engineering contracts, and electrical, mechanical, and building services contracts, as an alternative mode for settlement of construction disputes3. The Hong Kong Government Mediation Rules are a set of 23 rules used extensively for mediation in the construction industry, and administered by the Hong Kong International Arbitration Centre4. According to one writer, mediation is still not common in private development contracts or subcontracts5.

A cross-sector working group headed by the Secretary for Justice is currently mapping plans to employ mediation more extensively and effectively in higher-end commercial disputes and relatively small-scale local disputes6.

In the Courts, a Pilot Scheme for Voluntary Mediation for the Construction and Arbitration List has been in operation since 1 September 2006 and is scheduled to end on 31 August 2008. An unreasonable refusal or failure to attempt mediation may expose a party to adverse costs order . Also, a direction was recently issued by the President of the Tribunal on a Pilot Scheme for Building Management Cases. Again, an unreasonable refusal or failure to attempt mediation may expose a party to adverse costs order7.

The Hong Kong courts have heard several cases involving agreements to mediate. In several cases the agreements were not upheld for uncertainty as the agreements lacked specifics on how mediation was to be established. In 2004, the Court of Appeal in Hyundai Engineering and Construction Ltd v Vigour Ltd [2005] 1 HKC 579, considered an agreement to stay arbitration proceedings which provided that “… both parties shall agree and submit to Third Party Mediation procedure, which shall be conducted and completed as soon as possible …”. In an action alleging repudiation of this agreement, the Court held that the agreement was too vague as it provided no specific steps to be taken. In so holding the Court was guided by the House of Lords decision of Walford v Miles [1992] 2 AC 128. Earlier in 2004, the Court of Appeal upheld a lower court decision not to stay proceedings on the basis that the agreement to mediate lacked the objective criteria on which a party’s compliance with an agreement to mediate could be judged. This the decision in Kenon Engineering Ltd v. Nippon Kokan Koji Kabushiki Kaisha (unreported, 27 April 2004)

Website

For more information on the Hong Kong Mediation Centre, see their website at http://www.mediation centre.com.hk/. Information on the website is available in both Chinese and English.

1 Michael J. Moser, “Hong Kong” in Dispute Resolution in Asia, Michael Pryles Ed., 3rd Edition, (Kluwer Law 

   International, 2006).

2 Last updated on 8 January 2008.

3 K.W. Chau, Insight into Resolving Construction Disputes by Mediation / Adjudication in Hong Kong, April 

   2007, Journal of Professional Issues in Engineering Education and Practice, 143.

4 Ibid at 144.

5 Ibid at 145.

6 Information obtained from HKMC on 20 October 2007.

7 Ibid.

8 Ibid.