Lawyers falling short as mediators

PUBLISHED : Monday, 16 July, 2012, 12:00am
UPDATED : Monday, 16 July, 2012, 12:00am


Seven out of 10 lawyers seeking to become mediators fail to get accredited due to an approach to court cases that is 'too adversarial'.

Mediators, whose task is to help resolve legal disputes in civil cases before the parties have to resort to litigation, come from all walks of life. But, ironically, it is lawyers who fare worst when trying to get accredited.

Only 30 per cent of lawyers who seek accreditation at the Hong Kong Mediation Centre pass, compared with 45 per cent of non-lawyers, said the centre's founding president, Dr Raymond Leung Hai-ming.

'Lawyers are trained to fight for the best interest of their clients,' Leung said. 'However, mediation aims to help parties resolve their disputes. So lawyers should put aside their advocacy skills when they act as mediators.'

Slightly more than half of solicitors in the city are accredited by the Hong Kong Law Society. Of its 8,000 members, just 269 (or 3 per cent) are accredited mediators.

The overall pass rate is between 65 per cent and 75 per cent at the Hong Kong International Arbitration Centre, which accredits mediators from different professional backgrounds, including accountants and academics as well as lawyers.

Since the Civil Justice Reform in April 2009, the judiciary has increasingly promoted the use of mediation as an alternative to traditional litigation. The goal is to ease the caseloads of court, as well as to cut the time and legal cost for parties.

The caseload of civil litigation at Court of First Instance was slashed to 15,887 last year from 26,451 in 2009, a 40 per cent drop that is widely attributed to increased mediation.

But the mediation centre's membership committee chairman, Andrew Chiu Ka-yin, said some local lawyers had to take the assessment four or five times before passing.

Albert Wong Kwai-huen, a former Law Society president who strongly promotes mediation, attributed the high failing rate to traditional legal training that focuses on adversarial advocacy in litigation.

Instead of such a zero-sum approach, mediation must help both parties arrive at a mutually accepted solution.

'We see some lawyers who take the accreditation exam easily forget their role as a mediator,' said Wong, a veteran lawyer who is also chairman of the Hong Kong International Arbitration Centre.

'Their judgmental mindset is fatal to the assessment. During role-play sessions, some lawyers are prone to weigh the strength of the cases for each side and make legal analysis for the parties.

'A mediator's role is to find common areas where both parties agree and to help resolve the differences between them, instead of giving opinions to parties on the terms they should accept or reject,' he said.

'In fact, mediators should not suggest the terms of settlement or make judgments for the parties.'

But Wong admitted lawyers always have the edge over non-lawyers when it comes to easily understanding the issues in disputes.

He said law schools should incorporate mediation into their core courses to help students keep pace with the growing trend.

Meanwhile, Wong rejected arguments that mediation could undermine justice as fewer and fewer cases were being heard in court. Even before the Civil Justice Reform, 70 per cent of cases were settled before they came to court, he said.

The reform has helped shorten the time needed to reach a settlement from one or two years to four or five months, saving legal costs for the parties involved, he said.

'No parties can be forced to sign a settlement agreement if they feel the terms are unfair to them,' he said. 'So mediation would not give rise to the problem of injustice.'