f. Practice Direction 15.10: Family Mediation

f. Practice Direction 15.10: Family Mediation

Practice Direction 15.10 (“PD 15.10”), titled “Family Mediation”, establishes the procedural framework for mediation in matrimonial and family proceedings. The current Practice Direction came into effect on May 2, 2012. 

Purpose and scope 

The primary objective of PD 15.10 is to assist the court in its duty to facilitate the settlement of disputes and encourage parties to use mediation where appropriate. 

It applies to “Matrimonial Proceedings” and “Family Proceedings” as defined in Practice Direction 15.12. 

It does not automatically apply to certain proceedings unless directed by the court, including those under the Adoption Ordinance (Cap. 290), Legitimacy Ordinance (Cap. 184), Maintenance Orders (Reciprocal Enforcement) Ordinance (Cap. 188), Marriage Ordinance (Cap. 181), Marriage Reform Ordinance (Cap. 178), and Parent and Child Ordinance (Cap. 429). 

Key procedures 

PD 15.10 prescribes a specific referral process that begins at the earliest stages of litigation: 

Solicitors must advise clients on the availability of family mediation and provide a standard information leaflet issued by the Judiciary. 

When filing a petition or originating summons, the solicitor must file a “Petitioner’s/Applicant’s Certificate as to Family Mediation” (Appendix 1) signed by both the solicitor and the party. 

If a desire to mediate is indicated, the Family Court Registry refers the case to the Mediation Co-ordinator, who communicates with the parties to seek consent for the commencement of the process. 

The Registry staff are responsible for providing the information leaflet and certificate directly to unrepresented litigants. 

At any stage during litigation, parties may separately or jointly file an “Application for Family Mediation” (Appendix 5) with the Co-ordinator to attend an information session. 

Court directions and stays 

While an application for mediation does not lead to an automatic stay of legal proceedings, the court has the discretion to grant one. 

If parties agree to mediate but cannot agree on the arrangements, they may apply to the court for directions to resolve points of difference. 

The court may stay proceedings for mediation for a period it thinks fit, while remaining mindful of avoiding unnecessary delay to milestone dates and fixed trial dates. 

Costs and sanctions 

Similar to the general civil mediation framework, PD 15.10 provides that the court may make an adverse costs order against a party who unreasonably fails to engage in mediation. A party can avoid these sanctions if they show they have: 

1. Engaged in mediation to a minimum level of participation agreed to by the parties or directed by the court (for example, at least one substantive mediation session of a duration determined by the mediator). 
2. Provided a reasonable explanation for not engaging in mediation. 

Confidentiality and privilege 

The Practice Direction emphasizes that the court cannot compel the disclosure of materials protected by legal professional privilege or without prejudice privilege. Communications made during the mediation process are specifically protected as privileged and generally inadmissible in court, a principle also reflected in section 9 of the Mediation Ordinance (Cap. 620).