'Mediation Isn't being taken seriously'
Insincere litigants and professionals who fail to take the process seriously are said to be hampering the development of mediation as a way of settling disputes without needing to go to court.
Some parties go through mediation to satisfy the court, then go to court anyway, says the head of an office set up to promote the process.
And a specialist in dispute resolution suspects many professionals take mediation courses just to earn an extra title and more money without really believing in the process.
Results are confidential, but estimates of the success rate of mediation, which has been promoted in Hong Kong since the launch of civil justice reform in 2009, range from half to just over two-thirds.
Chan Bing-woon, chairman of the Joint Mediation Helpline Office, said the rate could be higher if it was not dragged down by those who were insincere about resolving disputes outside court. He said some were simply trying to avoid being penalised by the court for not entering the process.
Chan, who puts the success rate at about 50 per cent, says he isn't unhappy with it given the process's relatively short history in the city. Meanwhile, the Hong Kong Mediation Centre - one of several legal and professional groups that helped set up the helpline office last year - puts the rate at about 70 per cent.
Chinese University law professor Sarah Hilmer, who specialises in international commercial dispute resolution, agreed mediation would not be appropriate if parties were not committed to the process, or attended in bad faith or had unreasonable expectations about the outcome.
'But the question is, what does 'success rate' mean?' she asked.
'Does it mean a settlement agreement has been reached by the parties at the end of the mediation?
'Or does it mean the parties reached a partial agreement of the issues in dispute?
'Or does it mean the parties reached no agreement, but a better understanding of where the other party is coming from, or that they agreed to select another alternative dispute resolution process?'
Hilmer said organisations and government departments supported and actively encouraged mediation development, but individual lay people were less enthusiastic.
She said the success rate of voluntary mediation in New South Wales, Australia, was about 85 per cent - similar to that in the US.
This was due to the longer history of mediation in the West, which started in the 1970s.
Professor Hilmer was also sceptical about the quality of mediators in Hong Kong, noting they come from a variety of backgrounds including engineering, teaching and business. Some were lawyers and social workers.
'A well-trained mediator is the key to a potentially successful mediation,' she said.
'At the moment, it seems many professionals undertake mediation courses to carry an extra title and earn extra money without seeing the real benefit in such a process - or even worse, not believing in mediation from the outset.'
In his speech at the start of the legal year, Chief Justice Geoffrey Ma Tao-li said more lawyers were embracing the alternative way of settling disputes and he was pleased with the progress of the reform.
Even though mediation is officially regarded as voluntary, parties who refuse mediation or other dispute resolution mechanisms without reason can be penalised with adverse costs even they win in court.
The caseload of civil disputes handled by the District Court was 23,260 last year, down 15 per cent from 2009 and 18 per cent from 2008.
The approximate starting price per hour, in Hong Kong dollars, for mediation services. For complex matters, the fee may exceed HK$6,000