D. Legal framework
The legal framework for mediation in Hong Kong is primarily established through the Mediation Ordinance (Cap. 620) and various Practice Directions issued by the Judiciary. This framework was designed to provide a predictable environment for alternative dispute resolution, with the twin objects of promoting the resolution of disputes and protecting the confidential nature of the process.
Under the Mediation Ordinance, mediation is defined as a structured process where one or more impartial individuals assist parties in identifying issues, exploring options, communicating with one another and reaching agreements regarding the resolution of the dispute. The framework generally applies to any facilitative mediation conducted under a written agreement, whether it is a private contractual matter or adjunct to court proceedings.
A cornerstone of this regime is confidentiality. To encourage open dialogue, mediation communications are generally inadmissible in evidence and must not be disclosed. There are limited statutory exceptions, such as for seeking legal advice or preventing harm to a child, though some disclosures require formal leave from the court.
The Civil Justice Reform further integrates mediation into the litigation process. Notably, Practice Direction 31 requires litigants to indicate their willingness to mediate via “Mediation Certificates”. Parties who unreasonably fail to engage in mediation may face adverse costs orders. While the Ordinance does not mandate mediator qualifications, the Hong Kong Mediation Accreditation Association Limited serves as the premier body for unifying professional standards.
Complementary legislation, such as the Apology Ordinance (Cap. 631), further facilitates settlement by protecting apologies from being used as admissions of fault.
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