Simple Guide to Mediation in Hong Kong





Mediation is a voluntary, non-legally binding, and private dispute resolution process in which a neutral person called mediator helps the parties to try to reach a negotiated settlement.


Pre-mediation Process


(a)    Initial contact, assessment and pre-mediation information ──  it is essential for mediators to be aware of who is contacting them and whether there is any conflict of interest etc., as the mediator’s fees may be paid by someone other than the parties. The pre-mediation information such as whether the mediation is required by the court, who has authority to decide, the extent of confidentiality and the needs/preferences of the parties etc., can be obtained at a pre-mediation meeting or telephone etc. The initial assessment is also essential in mediation. For instance, in a family dispute, it is essential to know whether there was any domestic violence etc. Further, mediation may not be suitable if there is a significant power imbalance between the parties or the relationship between them is hostile or one party intends to obtain an urgent injunction or decision of the court;


(b)    Preparation  ── the pre-mediation meetings by the parties and their lawyers (if any) with the mediator is important, in order to gather additional background on the materials or to clarify role expectations etc. The relevant documents can also be reviewed or exchanged in advance of mediation. If lawyers are involved, they should be asked to produce a case summary, as well as a mediation memo (similar to brief to counsel) setting out the facts and the issues involved. The mediator can prepare a checklist, if necessary;


(c)    Designing the mediation process ──  creativity is needed in designing conflict resolution processes, such as the understanding of the environment and the culture, the setting for mediation hearing and the cost consequences to the parties if the dispute is not resolved through mediation etc. Always remember the two major features that attract people to mediation are flexibility and innovation.


Mediation Process


Facilitative mediators speak of 3 phases in the process [i.e. (i) information and theme gathering, (ii) exploration and (iii) problem-solving]. The information and theme gathering phase consists of 3 steps (i.e. the mediators opening; party openings; and structure & sequence). They are briefly explained as follows:-



(a)    Mediators opening ── a mediator needs to ensure that all participants are aware of the principles underpinning the process and will begin by welcoming all present and then:

i.                     Outline the role of the mediator and emphasize neutrality and impartiality, and to disclose any potential conflict of interest;

ii.                   Remind the participants of their obligations in mediation and the importance of keeping everything discussed at the mediation session confidential;

iii.                  Tell the participants the steps that would take place (i.e. who to speak first, their role, to reveal the differences, the need to have separate private meeting with a party, doctrine of confidentially, inadmissibility of mediation evidence, confirmation of authority to settle, establishment of ground rules, solicit questions and invite feedback or input, and to express optimism that mediation will be beneficial etc.) Mediator should also acknowledge that there is no one right way to proceed in mediation.


(b)    Party openings ──  after establishing ground rules for mediation meeting etc., a mediator should then invite the parties to tell their story and after a party has spoken, the mediator should ask that party’s lawyer if he has anything to add etc. before inviting the next party to speak. This will demonstrate that mediation values the direct participation by the parties. After each party has completed its opening, the mediation should summarize what he has heard....... “Let me just check that I have understood your main concerns here today.......”. A mediator should always ask open questions to invite a party to make its opening. It is also important for a mediator to obtain an acknowledgement from each party that the summaries accurately reflect what he/she was trying to convey.


(c)    Structure and sequence ──  after listening to the parties and summarizing their concerns, feelings and needs on various levels, a mediator is able to help the parties to set the agenda for mediation. An agenda is a list of issues, topics, themes, and broad areas of concern that the parties agreed they will need to talk through if they are going to resolve their conflict (i.e. identification of common ground, of the differences and of agenda items). Facilitative mediator takes one of the 2 approaches to setting the agenda [i.e. (i) ask the parties what they consider to be important points that need to be discussed [to prioritize] or (ii) use his framing skills to suggest agenda items based on the differences previously identified].


(d)    Exploration  ── the aims of exploration and dialogue are to identify and understand interests, explore issues in the light of interests, examine relational and symbolic dimensions of the dispute and consider what aspects can be quantified. Also, what gestures, acknowledgements, apologies or other measures that may be important in restoring relationships or salving loss of face etc.


(e)    The problem-solving phase ──  it comprises (i) option generation; (ii) negotiation and reality testing and (iii) outcome and documentation, which are briefly discussed below:-


i.                       the primary aims of option generations are to expand possible options to resolve the conflicts; encourage the parties to generate ideas for resolution of the conflict; identify a range of possible solutions and pre-empt impasse situations.

ii.                     a mediator should keep the negotiations on track by linking discussions to the agenda and during reality testing, a mediator should invite the parties to consider agreements in principle at the early stage of negotiations and then move subsequently to the finalization of details. Such an approach is useful if legal adviser is required to evaluate and make decision on the offer.

iii.                    Mediation may result in a mediated agreement to resolve the conflict or a partial mediated agreement, or no agreement. In closing the mediation, a mediator may consider to praise the good faith and the hard work of the participants, remind them of the doctrine of confidentiality, review the outstanding matters such as the drafting of settlement agreement and to confirm the next step, such as a follow-up meeting or a new conflict resolution process (if no full agreement).


Post-mediation Phase


Once the mediation sessions are over, there may still be a number of matters that would require follow-up. This may include:-


i.                     finalization of the agreement;

ii.                   fulfillment of conditional aspects of the agreement, e.g. appointment of a director or transfer of shares;

iii.                  ratification or sanction of the agreement, e.g. by Family Court in respect of the settlement of a family dispute;

iv.                 preparation of mediation report, if required.


At the end of a follow-up meeting, a mediator may make a phone call or issue a letter acknowledging the closure of the mediation and expressing thanks to the participants and their lawyers etc. in attending the sessions etc.




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