F. Role of mediators

F. Role of mediators

The mediator brings the parties together, whether in joint meetings or, where appropriate, separate private sessions, in a private and confidential setting. Each party will have the opportunity of putting forward his point of view and listening to what the other party has to say. 

Unlike an arbitrator, the mediator does not impose a decision on the parties. He does not provide legal advice and will not take sides. He will not determine who is right and who is wrong in the dispute, but merely helps to facilitate settlement.  

Under section 4(1) of the Mediation Ordinance (Cap. 620), the mediator assists the parties in four primary ways: 

1. Identifying issues: Helping parties clarify what is actually in dispute, which is often clouded by emotion. 
2. Exploring and generating options: Encouraging creative solutions beyond a simple “yes or no” and assisting parties to move past stalemates. 
3. Communicating: Establishing rapport, providing ground rules, and acting as an intermediary (shuttle diplomacy) to restore trust. 
4. Reaching agreement: Supporting parties as they formulate precise settlement terms to be encapsulated in a mediated settlement agreement. 

The mediator helps the parties explore the strengths and weaknesses of their cases, identify possible solutions, and help them resolve the matter between themselves. The mediator must not perform any adjudicative function. 

Conduct and ethics 

Generally speaking, mediators are required by their ethical and professional codes of practice to observe confidentiality in respect of all matters disclosed in the mediation sessions. Mediators in Hong Kong are also encouraged to adopt the Hong Kong Mediation Code, which provides a common ethical framework for mediation practice. The Code sets out standards of professional conduct, including impartiality, neutrality, independence, confidentiality and the mandatory disclosure of conflicts of interest. 

Section 4(1) of the Mediation Ordinance focuses specifically on the mediator’s duty to be impartial, requiring a mediator to show no bias or psychological predisposition toward a party. Institutional codes and professional standards may go further by expecting mediators to have no personal or professional ties to the parties or to the subject matter of the dispute, unless such matters have been fully disclosed and accepted by the parties. 

When the parties agree to take part in mediation, they will usually be required by the mediator to sign a Mediation Agreement, i.e. an agreement to mediate, which states that all negotiations undertaken pursuant to the mediation are to be privileged and conducted on a without prejudice basis. Without prejudice means that nothing discussed can be used as evidence in any future legal proceedings. Although the Hong Kong Mediation Code is not itself legislation, it is frequently incorporated into the agreement to mediate. This contractual adoption helps ensure that the mediator and the participants understand the ethical boundaries of the process, including the mediator’s obligation to remain impartial and not to decide the dispute for the parties. 

Mediation is considered to be a private and confidential process on two levels. Firstly, the mediation process must be kept confidential at all times in that no third party is allowed to be privy to the proceedings. Secondly, where a party discloses matters to the mediator in a private session, the mediator should not disclose those matters to the other party without permission. 

Accreditation of mediators 

The Hong Kong Mediation Accreditation Association Limited (“HKMAAL”) was established in August 2012 and officially commenced operations on 2 April 2013. It is the main non-statutory mediation accreditation body in Hong Kong. HKMAAL was founded by the Hong Kong Bar Association, the Law Society of Hong Kong, the Hong Kong International Arbitration Centre and the Hong Kong Mediation Centre. Supported by both the Government and the Judiciary, HKMAAL plays an important role in maintaining professional standards and quality assurance for mediators in Hong Kong. 

However, the Mediation Ordinance does not require a mediator to be accredited before acting as a mediator. This reflects a deliberate legislative choice to preserve party autonomy, allowing parties to choose a mediator whom they consider most suitable for their particular dispute, having regard to matters such as professional experience, technical knowledge, industry expertise, language ability or other relevant qualities.