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The Mediation Bill that we wrote about in our e-bulletin of 28
November 2011 has now been gazetted by the Hong Kong Government.
This means that the Bill is now an Ordinance (known as the
"Mediation Ordinance") and will take effect on a day
shortly to be announced by the incoming Secretary for Justice after
1 July 2012.
The Mediation Ordinance largely mirrors the Bill, but for some
relatively minor details. For example, the Mediation Ordinance
slightly expands the limited circumstances in which a person may
disclose a "mediation communication" (as defined in
section 2) as of right i.e. without needing the prior permission of
the court. In addition to the limited circumstances set out in our
earlier e-bulletin, a person may disclose a mediation communication
if "the disclosure is made for the purpose of seeking legal
advice" (section 8(2)(f)). That extra provision is
uncontroversial, self-explanatory and reflects practice.
Unlike some other proposed legislation, the Mediation Ordinance
has had a relatively smooth path through Hong Kong's
Legislative Council, since being introduced on 30 November 2011.
This reflects the fact that the Mediation Ordinance is not
controversial and that all stakeholders in Hong Kong are keen to
further the jurisdiction's status as a leading international
dispute resolution centre. The two primary purposes of the
Mediation Ordinance are: (i) to promote and encourage mediation for
the resolution of disputes in Hong Kong and (ii) to put the
confidentiality of mediation communications on a statutory footing
(in addition to the contractual confidentiality of the mediation
process and the convention of the "without prejudice"
nature of mediation communications as between the parties).
The Mediation Ordinance applies to any "agreement to
mediate" (as defined in section 2) pursuant to which the
mediation is wholly or partly conducted in Hong Kong or if the
agreement to mediate provides that Hong Kong law (or the Ordinance)
is to apply and irrespective of whether the agreement to mediate or
the mediation pre-dates the coming into force of the Ordinance
(section 5).
The Mediation Ordinance also applies to the Hong Kong Government
(section 6), in contrast (say) to the recently passed Competition
Ordinance (which, in large part, exempts virtually all of the
several hundred statutory bodies in Hong Kong).
The Mediation Ordinance does not apply to a number of statutory
backed "conciliation" or specific mediation processes
that are set out in Schedule 1 of the Ordinance.
The proposal for a single accreditation body for mediators in
Hong Kong is still a work in progress and will need to take into
account the interests of various interested parties.
The Mediation Ordinance was published on 22 June 2012 and can be
found at here. If you would like more detail on the
background to the Mediation Ordinance, please see our
previous article.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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