[Editor’s notes]

In this Issue, special column of “Stones from Other Mountains” is devoted to the history of commercial mediation in Hong Kong, China, detailing the continuous recognition of commercial mediation in Hong Kong, the outlook of Professor Zhao Yun of the University of Hong Kong on the development of international commercial mediation, relevant representative institutions, industry professionals and cases involving Hong Kong.

Professionals who are concerned about commercial mediation are welcome to contribute actively.

I. System Construction

Thanks to the continuous efforts, especially the advancement of civil judicial reform, the mediation system in Hong Kong has witnessed rapid development and remarkable achievements. In 1984, asaresultof the disputes arising from some major infrastructure projects at that time, the Hong Kong government started to promote mediation. During this period, the community was generally unaware of the merits of mediation and did not know how to make use of it due to the lack of publicity, resulting in theunderutilization of mediation.

Established in 1999, Hong Kong Mediation Centre (HKMC) is the first professional mediation organization designed to promote the use of mediation in business and civil society, and strives to implement mediation in Cantonese and English in order to provide mediation services that are most appropriate for Hong Kong residents. In addition, the Center also provides advanced mediation skill training characterized by comprehensive and informative training courses.

At the same time, the Hong Kong Government began to conceive the idea of promoting the use of mediation mechanism to the whole community. In February 2008, the Department of Justice took the lead in setting up an inter-departmental Working Group on Mediation dedicated to the promotion of the mediation mechanism. On April 2, 2009, new Rules of the High CourtandRules of the District Court came into force. Under Order 1A, Rule 4(2) of the Rules of the High Court, the Court may encourage parties to apply such procedure as it considers appropriate, which means that the Court will take an active approach to manage cases, including exploring whether to use the ADR procedure under appropriate circumstances.

To encourage the wider use of mediation in dispute resolution and to enhance the community’s awareness of mediation as a method of dispute resolution, the Department of Justice has been actively organizing various activities. In May 2009, the Department of Justice launched the “Mediate First” Pledge campaign to promote the use of mediation as a first step in dispute resolution and to encourage the promisee to fulfill the “Mediate First” Pledge and take the initiative to resolve disputes through mediation. Owingto the “Mediate First” Pledge campaign, commercial mediation has been proactively applied by market entities andthe influence of commercial mediation in the Hong Kong legal market has been expanded. Since 2011, Shanghai Commercial Mediation Center (SCMC) and its Hong Kong counterparts have held five “Shanghai-Hong Kong Commercial Mediation Forums” under the guidance and support of the Department of Justice to vigorously promote the concept of mediation first and create a platform for communication and connectivity between Shanghai and Hong Kong. This forum has become a regular exchange program between Shanghai and Hong Kong.

In line with the objectives of the judicial reform, the Practice Direction on Mediation (hereinafter referred to as “Practice Direction”) was enacted and implemented on January 1, 2010. Practice Direction marks an important milestone in the development of mediation services in Hong Kong. All parties involved in litigation are required to resolute the dispute in a good faith via mediation, provided that there is a convincing reason. In early 2010, the Department of Justice issued the Hong Kong Mediation Code to set common standards for mediators, and to ensure the quality of mediation services.

The Mediation Ordinance (Cap. 620), which was passed by the Legislative Council, came into operation on January 1, 2013. The Mediation Ordinance provides the legal basis for the development of mediation services without hampering the flexibility of the mediation process; the objects of the Mediation Ordinance are to promote, encourage and facilitate the resolution of disputes by mediation, and to protect the confidential nature of mediation communications (section 3).

II. Professional Opinions

This issue features an excerpt from the article The Singapore Convention on Mediation: Future Development of International Commercial Mediation under the New Version of the New York Convention by Professor Zhao Yun, Henry Cheng Professor in International Law and Head of the Department of Law at the University of Hong Kong. Professor Zhao Yun, an invited lecturer of Shanghai Kaisheng Commercial Professional Mediation Qualification Training Center, has conducted professional training on commercial mediation for judges in pilot courts of alternative dispute resolution in mainland and senior barristers of the Hong Kong Bar Association for many times. This article features an excerpt from the United Nations Convention on International Settlement Agreements Resulting from Mediation (hereinafter referred to as “Singapore Convention on Mediation”) in which countries are required to make preparations and recommendations for change with the intent of acceding to or implementing the Convention.

The excerpt of the article by Professor Yun Zhao is as follows：

First, the United Nations Commission on International Trade Law (UNCITRAL) adopted the Convention, while amending the Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, with a view to complementing the application of the Convention. This is particularly evident in the unification of the use of the terms “mediation” and “settlement”, which avoids conflicts in the use of terms in different texts. It is clear that the application of the Convention requires the cooperation and guarantee of domestic mediation laws. The model law adopted at the international level provides a good model for the domestic mediation legislation of each country. Any country that intends to become a member of the Convention should carefully consider its legal framework for mediation; in particular, countries that do not have domestic mediation legislation need to consider their domestic legislation as early as possible. In addition, UNCITRAL has adopted compromise or principled provisions in the content or wording of some articles for the purpose of reconciling different views of countries, and these provisions are subject to the support of the domestic laws of countries in the process of specific implementation.

Second, the Convention provides refusal of enforcement circumstances, including serious violations by the mediator of the guidelines applicable to the mediator or the mediation. Since different mediation models result in various mediation techniques, the Convention does not uniformly prescribe the relevant procedures and contents based on the flexibility of mediation. At present, there is no uniform practice or regulation of such guidelines across countries.Even in the same country, mediators from different institutions may have their own practices and considerations, so it is crucial to improve the rules of each institution and to train mediators in skills and professional ethics, which are directly related to the actual implementation of the Convention.

Third, some countries have established a reporting system to avoid local protectionism when implementing the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (hereinafter referred to as“New York Convention”). In the case of settlement agreements, the considerations for refusing enforcement may be different due to the absence of nationality issues, but once enforcement is refused, does it need to be reported? This is a critical problem. It is conceivable that settlement agreements are often drafted by the parties on their own, and the formulation of the relevant provisions may be flawed, at which point, does it constitute a refusal circumstance under the Convention? Different enforcement agencies may vary in judgment, thereby resulting in confusion. The reporting system can undoubtedly avoid the situation where enforcement is easily refused by unifying the relevant criteria for judging reasons such as “unclear or unintelligible” and giving the original role of Singapore Convention on Mediation.

Finally, considering the actual national condition in China, what is now called the large-scale mediation pattern includes various types of mediation such as people’s mediation, judicial mediation, administrative mediation, arbitration mediation and commercial mediation, and which types of settlement agreements reached by means of mediation are covered by the Singapore Convention on Mediation remains to be a question that needs to be carefully considered. Obviously, judicial mediation and arbitration mediation are excluded from the Convention, while people’s mediation, administrative mediation and commercial mediation depend on whether they are within the scope of international commercial disputes under the Convention. Although China has enacted the People’s Mediation Law, there is no legislation on general commercial mediation, so the existing People’s Mediation Law may not work well with the application of the Convention. Therefore, the future legislation of mediation remain to be a problem that needs to be carefully taken into account.

III. Organizations

The following is a list of representative mediation organizations in Hong Kong, of which the Hong Kong Mediation Accreditation Association Limited is a mediator accreditation institution and the rest are organizations specializing in mediation:

1. Hong Kong Mediation Accreditation Association Limited (HKMAAL), registered in 2012, 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. HKMAAL is the leading accreditation institution in the industry and is currently the leading accreditation institution for mediators in Hong Kong. HKMAAL is responsible for: (1) setting criteria for mediators, supervisors and other professionals involved in mediation in Hong Kong and accrediting those who have met the criteria; (2) setting criteria for mediation training courses in Hong Kong and accrediting those that have met the criteria; and (3) promoting mediation culture.

2. The Hong Kong Mediation Council (HKMC) was set up in January 1994 as a division of the Hong Kong International Arbitration Centre (HKIAC) to promote the development and use of mediation as a method of resolving disputes.

3. Hong Kong Mediation Centre (HKMC), established in 1999, is the first professional mediation organization recognized as a charitable institution in Hong Kong. It has more than 1,000 members from various professional sectors and plays a leading role in the mediation industry. For over 20 years, HKMC has strived to promote the development of mediation through its diverse services, aiming to create a harmonious community. Apart from professional mediation services provision, its scope of services extends to areas such as professional training professionalization, public education and external collaboration.

4. The Joint Mediation Helpline Office (JMHO) is a non-profit-making organization established in 2010 with a view to promoting the use of mediation as a means of dispute resolution in Hong Kong. The JMHO consists of the following organizations, namely, the Hong Kong Mediation Council, the Hong Kong Bar Association, the Law Society of Hong Kong, the Chartered Institute of Arbitrators (East Asia Branch), the Hong Kong Institute of Arbitrators, the Hong Kong Institute of Architects, the Hong Kong Institute of Surveyors, the Hong Kong Mediation Centre and the Hong Kong Institution of Engineers. The West Kowloon Mediation Centre (WKMC), which is coordinated by JMHO, was launched on 8 November 2018 with a view to advancing “Mediate First” campaign, marking the government’s commitment to promote mediation services, enhance public awareness of mediation, and provide mediation services for Small Claims Tribunal (SCT) cases and other appropriate cases.

Under the guidance of the Hong Kong Department of Justice, SCMC and JMHO have been sharing a cooperative relationship and have successfully held five Shanghai-Hong Kong Commercial Mediation Forums.

IV. Mediation Experts

Chan Bing Woon, an LLB at University of London, a Notary Public in Hong Kong, a former Chairman of the Hong Kong Mediation Council (affiliated to the Hong Kong International Arbitration Centre), a voluntary advisor and founding Chairman of the Hong Kong Joint Mediation Helpline Office, was awarded the Medal of Honor in 1993, the Justice of the Peace in 1996, the MBE in 1997 and the Silver Bauhinia Star in 1998. Mr. Chan has made pioneering contributions to the cause of mediation in Hong Kong. He comments on his work that the role of mediation is like a bridge that enables two isolated islands to communicate. They have sought satisfactory results through mediation, safeguarded and reconciled their own rights and interests as well as those of the other party to the greatest extent, and have worked together to promote the advancement of the laws in Hong Kong.

On January 8, 2011, Chan Bing Woon, the Chairman of the Hong Kong Mediation Council, and Zhang Wei, Director of SCMC, signed the Memorandum of Understanding at the “Establishment of the Shanghai Commercial Mediation Center and Signing Ceremony of the Memorandum of Understanding between Shanghai and Hong Kong (Commercial) Mediation Institutions”, initiating the cooperation between Shanghai and Hong Kong commercial mediation.

（Ms. Siu Wing Yee）

Ms. Siu Wing Yee, Justice of the Peace, Chairman of Joint Mediation Helpline Office, founder of Hong Kong Mediation Centre, is a registered solicitor in Hong Kong, the UK, Singapore and Australia; mediator of China Council for the Promotion of International Trade (CCPIT), Dongguan No.2 People’s Court, Centre for Effective Dispute Resolution (CEDR) in the UK, Hong Kong International Arbitration Centre (HKIAC), Law Society of Hong Kong, Hong Kong Institute of Arbitrators (HKIARB), Hong Kong Mediation Accreditation Association Limited (HKMAAL), Hong Kong Mediation Centre (HKMC) and World Trade Center Macau. According to Ms. Siu Wing Yee, “Social harmony does not occur naturally. With the rapid development of the economy, disputes in the society are also increasing in an accelerated manner. In order to have a harmonious society, it is necessary to mediate the disputes in all aspects.” She believes that mediation is the only way to ensure effective communication, fair guidance and finally be beneficial to the parties.

[References]

Zhao Yun, The Singapore Convention on Mediation: Future Development of International Commercial Mediation under the New Version of the New York Convention, Local Legislation Journal, Volume 5, Issue 3, May 15, 2020.

[Related Websites]

1. Hong Kong Department of Justice

https://www.doj.gov.hk/sc/home/index.html

2. Hong Kong Mediation Accreditation Association Limited

http://www.hkmaal.org.hk/sc/index.php

3. Hong Kong International Arbitration Centre

https://www.hkiac.org/zh-hant

4. Hong Kong Mediation Center

http://www.mediationcentre.org.hk/sc/home/home.php#gsc.tab=0

5. Joint Mediation Helpline Office

https://www.jointmediationhelpline.org.hk/index_s.html

[Laws and Regulations]

1. Practice Direction on Mediation

https://legalref.judiciary.hk/lrs/common/pd/pdcontent.jsp?pdn=PD31.htm&lang=CH

2. Hong Kong Mediation Code

http://www.hkmaal.org.hk/sc/HongKongMediationCode.php

3. Mediation Ordinance (Cap. 620)

https://www.doj.gov.hk/sc/legal_dispute/mediation.html

4. Apology Ordinance (CAP. 631)

https://www.doj.gov.hk/sc/legal_dispute/mediation.html

5. Arbitration and Mediation Legislation (Third Party Funding) (Amendment)

https://www.doj.gov.hk/sc/legal_dispute/pdf/brief_note_tpf_sc.pdf

[Comments and Suggestions]

We sincerely invite you to comment on this column of “Stone of Other Mountains: Trends of International Commercial Mediation” or put forward your valuable opinions, which we will improve. Thanks for your attention!