B. Key features of mediation
- Facilitative and non-adjudicative process
Mediation is a facilitative and non-adjudicative process. In Hong Kong, the main form of mediation is facilitative mediation. This means that the mediator helps the parties discuss their concerns, identify the real issues in dispute, and explore possible ways to settle the matter. The mediator does not focus only on strict legal rights, but may also help the parties consider their underlying interests, practical needs and future relationship.
A mediator is not a judge or an arbitrator. The mediator has no power to decide who is right or wrong, impose a solution, or force the parties to settle. Mediation is therefore a form of assisted negotiation. The mediator manages the process and encourages constructive communication, but the parties remain responsible for deciding whether to settle and what the settlement terms should be.
- Voluntary nature of mediation
Mediation is voluntary. The parties decide whether to take part in mediation, what matters they wish to discuss, and whether they are willing to accept any proposed settlement. If an agreement is reached, it is the parties’ own agreement. A party may withdraw from mediation at any stage. The mediator may also end the mediation if it is no longer appropriate or useful to continue.
This allows the parties to reach practical and creative solutions that may not be available from a court. For example, a mediated settlement may include apologies, future business arrangements, payment schedules, or other terms designed to preserve relationships.
- Role of the mediator
The mediator must be impartial. This means that the mediator must treat all parties fairly and must not favour one side over another. The mediator should also be neutral and independent. If there is any actual or possible conflict of interest, the mediator should disclose it before or during the mediation.
The mediator’s role is to act as a neutral facilitator. The mediator may help the parties communicate more effectively, clarify the issues, consider their options and move towards settlement. However, the mediator does not give a binding decision and should not act as a legal adviser to any party. Parties should obtain independent legal advice where necessary.
- Flexible but structured procedure
Mediation is less formal than court proceedings, but it usually follows an organised process. A typical mediation may begin with the mediator’s opening remarks, followed by opening statements from the parties. The mediator may then help the parties identify the issues, explore areas of agreement and disagreement, and consider possible settlement options.
The mediation may involve joint meetings with all parties present and private meetings between the mediator and each party. These private meetings are often called caucuses. They allow a party to speak confidentially with the mediator about its concerns, priorities and possible settlement position.
The procedure remains flexible. The parties and the mediator may agree on the timetable, venue, format and method of communication. Mediation may take place in person, online, or by a mixture of different methods. If a settlement is reached, the terms are usually recorded in a written mediated settlement agreement.
- Confidentiality and without prejudice protection
Confidentiality is an important feature of mediation. It encourages parties to speak openly and explore settlement options without fear that what they say will later be used against them. Under the Mediation Ordinance, a “mediation communication” generally includes anything said or done, any document prepared, or any information provided for the purpose of, or in the course of, mediation. Such communications are generally confidential and are not admissible as evidence in judicial, arbitral, administrative or disciplinary proceedings, unless an exception applies or permission is given.
Mediation is also protected by the common law “without prejudice” rule. This means that statements, admissions, concessions or settlement offers made during mediation generally cannot be used against a party if the mediation fails and the case later goes to trial. This protection allows parties to negotiate more openly without prejudicing their legal position.
However, the agreement to mediate and the mediated settlement agreement are not treated as “mediation communications” under the Mediation Ordinance. They do not have statutory confidentiality under that definition. They may be produced where necessary, for example, to prove that the parties agreed to mediate or to enforce the terms of a settlement.
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