1. Apart from bringing the dispute to the court for trial, are there any ways for me and other parties to settle?

In fact, most civil cases are settled before the trial stage. If parties wish to seek an early settlement, the ways to do so are by methods of alternative dispute resolution (“ADR”).

Negotiation

Out of numerous avenues available under ADR, negotiation is the most common way of settling disputes in Hong Kong. Negotiation procedures can be flexible and decided between the concerned parties, taking their needs and priorities into account. It can be conducted, for example, orally or in writing, by telephone or face-to-face meetings.

Legal representatives can be present for negotiation meetings, but this is not necessary. The arrangement of legal representatives is, as described above, up to the parties’ preferences. In other words, negotiation can be conducted (a) between the parties with their legal advisers present, or (b) without their legal representatives and between the parties themselves, or even (c) only the legal representatives on behalf of the parties.

While negotiation can be effective, it has its limitations and parties may come to a deadlock during negotiation. In such cases, other forms of ADR may come in handy, for example:

Mediation
Early neutral evaluation
Expert determination
Arbitration

Mediation

Mediation is a flexible and consensual process, under a confidential environment, in which a neutral and impartial person (a mediator) actively assists the parties in working towards a negotiated resolution of their dispute or difference. The parties remain in ultimate control of both the decision to settle and the terms of any settlement. The mediator does not adjudicate the dispute, impose a decision, or give judgment as to who is right or wrong.

For more information, please refer to “Mediation”.

Early neutral evaluation (“ENE”)

ENE is a process to appoint an expert in an expertise field to evaluate narrow differences in that field. For example, if the dispute concerns issues in personal injuries, a medical expert is appointed to evaluate the issues; if it is a dispute between farms, an agricultural expert is then appointed. The primary goal is to give a clear judgment on the highlighted issues early in the dispute, but not all the differences involved in the case nor all possible settlement proposals, which are something to be pursued by the parties themselves.

Expert determination

Similar to ENE, expert determination is a procedure in which a dispute between the parties is submitted, by agreement of the parties, to one (or more) expert(s) who make a determination on the matter referred to them. The determination is binding, unless the parties agree otherwise. This method is consensual, neutral and flexible.

Arbitration

Arbitration is a private dispute resolution process by which a dispute or difference between two or more parties regarding their mutual legal rights and liabilities is referred to and determined in a judicial manner, with binding effect, by the application of law by one or more persons (the arbitral tribunal) instead of by a court of law. The final decision rendered by the tribunal is usually called an award.

Although arbitration is also a form of ADR, its format resembles more closely that of a trial. Such differences between arbitration and other forms of ADR should be considered carefully.

For more information, please refer to “Arbitration”.

ADR is becoming increasingly common in litigation to settle their dispute early. However, whether ADR is appropriate for a particular case will depend greatly on the attitudes of the parties to the claim itself, and the advantages and disadvantages of ADR, when compared to litigation or arbitration, to resolve the claim.

Therefore, you should first consult your lawyer to consider the merits and shortcomings of ADR generally. It will then be necessary to decide what form of ADR to choose. After that, you should seek to discover if the other side is prepared to use it too.