Give mediation more time to work
Mediation of legal disputes offers a cheap and quick way of resolving them without getting involved in long and costly court battles. It has been strongly promoted by the judiciary as part of civil justice reforms adopted more than two years ago. Nonetheless doubts have been voiced about the commitment of many litigants and mediation professionals. Estimates of the success rate of mediation range from 50 per cent to more than two-thirds.
Chan Bing-woon, chairman of the Joint Mediation Helpline Office, said it could be higher if it were not for insincere parties who entered litigation to satisfy the courts and avoid possible cost penalties, and then went on to fight it out in the courtroom anyway. Chinese University law professor Sarah Hilmer, a specialist in international commercial dispute resolution, says a well-trained mediator is key to the potential resolution of a dispute. But many professionals, from a variety of backgrounds as well as the law, undertook mediation courses for the title or extra earnings without seeing the benefit in the process or even believing in it.
Chan is not unhappy with a 50 per cent success rate given the short history of the reforms. Indeed, Hilmer attributes a higher success rate in some Western countries to the existence of mediation as an alternative since the 1970s and greater acceptance of it.
Judges share the responsibility for making mediation work by referring suitable cases. Since the reforms, they have taken case management out of the hands of the parties to minimise costly procedural delays that can make justice unaffordable to many. Under similar reforms in England that have been in place for more than a decade, increased powers of case management for judges are credited with better prepared and more efficiently conducted cases. But those reforms have not achieved the aim of reducing the costs of litigation.
Hong Kong introduced similar reforms many years after England, but was careful not to adopt them wholesale. Nonetheless, some of the issues which have caused much debate there are now beginning to surface here. Civil-justice reform in England remains the subject of much debate. Professor Hazel Genn of University College, London, a recognised authority, has expressed concern about the downgrading of civil justice there through diversion to private dispute resolution.
Clearly, mediation remains a better way of resolving disputes where parties are willing. It should be encouraged, but we need to be aware of its limitations. Overseas experience suggests it will gain a greater degree of acceptance over time. Meanwhile, judges bear a heavy responsibility for managing civil cases and ensuring the reforms, including greater mediation, do indeed increase access to affordable justice.