Chief justice praises mediation

PUBLISHED : Tuesday, 11 January, 2011, 12:00am
UPDATED : Tuesday, 11 January, 2011, 12:00am

Leaders of the legal profession are ringing alarm bells over the quality of mediators and the mediation process, but Chief Justice Geoffrey Ma Tao-li says he is pleased with the progress of the reform.

In his maiden speech for the Legal Year, Ma said yesterday that more legal practitioners were embracing the alternative way of resolving disputes, one that the judiciary has been strongly promoting in its Civil Justice Reform.

'Certain individual innovations of the reform that we expected to achieve a more immediate impact have done so,' he said. 'For example, the use of sanctioned payments as a means of resolving disputes has been encouraging.'

The chief justice said the courts would not force parties to use the alternative mechanism.

However, Bar Association chairman Russell Coleman SC warned that mediation may be overused.

He said the method 'is not suitable for every case or every party' and that 'a balanced approach to it is necessary''. Coleman questioned whether 'treating mediation as good and litigation as bad is consistent with a commitment to equal access of justice'.

He said: 'Giving a sense to litigants and their advisers that mediation is just another hurdle to jump on the way to trial is not productive and may well give rise to abuse.

'There have already been concerns in Hong Kong that some parties have simply 'ticked the box' of mediation, without a real attempt - sometimes deliberately to avoid a real attempt - to mediate, simply to hope to avoid later criticism from the courts.'

Secretary for Justice Wong Yan-lung shared his concern.

'Already we have heard of suspected abuses where mediation was reduced to a 'tick-box' and a motion to go through,' Wong said in his speech.

He said quality control of mediation and mediators had become a pressing issue.

He said a task force had been set up to work out a system of single accreditation of mediators and to recommend relevant legislation. In January last year the judiciary set out a guide for the High Court and the District Court to promote the use of mediation to settle disputes.

The direction applies to most civil proceedings in the Court of First Instance and the District Court.

Parties refusing to try mediation might have to bear adverse costs.

Wong said that with public awareness growing about individual rights and freedoms, the government would have to face more judicial reviews that challenge the lawfulness of public bodies' decision-making.

He said the authorities should bear in mind that 'sound administration must rest upon a sound legal basis'. Ma also used his speech to discuss the 'true role' of the courts. The courts, Ma said, do not serve people by solving political, social or economic issues.

'They [the courts] are neither qualified nor constitutionally able to do so. However, where legal issues are concerned, this is the business of the courts and whatever the context or the controversy, the courts and judges will deal with these legal issues.'

Meanwhile, the Bar Association's Coleman reiterated his call for access to justice to be widened, urging the government to speed up improvements to Legal Aid.

Justice was not a luxury item, he said, adding that the system was awry if a significant proportion of the population cannot afford to litigate.

Chief Executive Donald Tsang Yam-kuen announced in his October policy address that the government would earmark HK$100 million for the Supplementary Legal Aid Scheme when needed.

'The Bar hopes that the good-news statements will very quickly be put into action and that the pace of improvement gathers some speed,' Coleman said.