ADR is defined as a process whereby two parties having a disagreement agree to resolve it by appointing a 3rd party (aka an intermediary or mediator). Under HK legislation, mediation cannot be enforced or imposed unless there is explicit consent of both parties involved.
How Mediation Evolved in HK
When the construction of the HK Airport got underway, airport-related contracts included two clauses - mediation and arbitration ones.
The general contractual terms approved in the early 1990s also included identical clauses that related to infrastructure projects and construction projects.
Following the adoption of respective legislative framework, over one thousand cases were initiated, of which nearly eighty percent resulted in some kind of settlement (either full or partial).
2006 saw the establishment of a committee tasked with looking into the possibility of getting mediators involved in lawsuits tried by district courts and land tribunals.
2008 saw the establishment of a special group charged with monitoring the situation with mediation & mediation-related services in HK. The group came up with a report containing forty eight recommendations on improving mediation-related legislation in HK. Two years later, another special group was assembled entrusted with the implementation of the said forty eight recommendations. Since then, resolving disputes by means of mediation has been a widely resorted to method in HK.
Regulatory Framework
HK has special regulatory framework in place that can be applied to mediation-related cases in HK and abroad. Articles thirty two and thirty three of the said legislation envisage provision of mediation-related services following initiation of court hearings.
Should resolving a dispute by means of mediation in HK fail to achieve an expected outcome, mediators may can play the role of arbitrators in the said dispute.
Conflict Resolution in HK
Under HK legislation, mediation cannot be enforced or imposed unless both parties explicitly agree to it. Filing a lawsuit was and still is the most widely resorted to method of resolving commercial disputes in HK.
It is not explicitly specified in HK legislation whether mediators should have any specific qualifications, whether they should apply for any accreditation or whether they should refer to themselves other than mediators. Theoretically, the parties can appoint any individual whom they trust as their mediator.
English-speaking intermediaries can also take part in resolving disputes in HK. To be eligible for this, they need to apply for accreditation with HKMAAL which is the number one accreditation authority in HK. It sees its mission in setting standards for accrediting mediators and mediation-related courses, as well as promoting professional growth of individuals & organization involved in provision of mediation-related services in HK.
Responsibilities of intermediaries are not clearly defined in HK legislation; however, they can only be made responsible for being dishonest with their clients.
Mediation-Related Agreement in HK
It is considered inappropriate for individuals providing mediation-related services to render their assistance prior to signing a respective agreement.
Under the agreement, parties agree to appoint an intermediary that will be responsible for resolving their dispute on terms that are mutually acceptable for them.
If there is no agreement, HKIAC is unable to appoint an intermediary. If there is no respective clause in the agreement, parties can select an intermediary themselves or hire an institution which is going to find an intermediary for them. HKIAC is not currently authorized to appoint intermediaries.
COI & Impartiality of Intermediaries
An intermediary that intends to resolve a dispute must be impartial and disclose any connection/interests that they have with either party.
Under HKIAC, an intermediary can be disqualified if they deliberately divulge any information pertaining to the nature of the case.
Conclusion
As stated above, HK is a veritable mecca for all those seeking to resolve their disputes. In case you didn't know, resolving a dispute in Hong Kong can also be done online.
To be able to do that, you can make use of special mechanisms that HKIAC provides for resolving disputes online.
Looking to settle a dispute by means of mediation in HK? Need legal advice on matters pertaining to resolving commercial disputes in HK? IQ Decision UK can help you with that and a lot more.
