Government must also opt for mediation
Your editorial on Hong Kong's civil justice reforms ('Reforms must heed needs of the judiciary', December 31) raises an interesting point about mediation in civil disputes.
You said: 'Reforms introduced last April promised to make civil justice more equally accessible, if not through mediation then by avoiding costly time-wasting by lawyers in court.'
That reforms should provide fairer procedures and less time-wasting is not difficult to understand, but how does mediation make justice more equally accessible?
If access to justice is narrowly interpreted as access to the courts and to just outcomes, then it is not obvious how mediation can improve access. Mediation is about private settlement; it does not promise just settlement. When conducted well, mediation can produce, relatively quickly and inexpensively, settlements that disputants can live with, but it is not necessarily about more access or more justice. In fact, its promotion by the judiciary could be perceived as a way of diverting disputes from courts and court-delivered justice.
This is the assessment made by Dame Hazel Genn (dean of laws and professor of socio-legal studies at University College London) in her recent Hamlyn lectures in the context of similar civil justice reforms introduced in England 10 years ago.
In Hong Kong, increasing pressure will be put on litigants to mediate. While there may be little doubt that its increased use is a socially positive development, why should mediation be pushed in courts by judges and not by senior bureaucrats in their departments?
