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THE LAW REFORM COMMISSION OF HONG KONG - page 216 / 360

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into account in:

“the framing of official programs intended to encourage resort to ADR.  This can be achieved, at least to some extent, by encouraging appropriate training for mediators and establishing screening processes to identify parties whose disputes are unsuitable for mediation”.912

Arguments against court-annexed mediation

9.7The Access to Justice report outlined the arguments against court-annexed mediation as follows:

(1)“It is claimed that courts are places of public authority, where judges make decisions that are enforced by sanctions.  These qualities are ... inherently incompatible with the philosophy of ADR, which is based on the consensual resolution of disputes.”913

The report’s response was that this was not an argument against court-annexed mediation itself, but rather against courts having the power unilaterally to refer parties to mediation.914

(2)The involvement of judges in ADR will erode respect for the judiciary: 915

(3)Some techniques of mediation, such as private caucus sessions with each party, are inconsistent with the judicial process, which must be public and scrupulously fair to both sides.916

The Chief Justice of the Federal Court responded by saying that in the five years that it had been available, no complaints had been received that the ADR system allowed improper access to the Court.917

Arguments in favour of court-annexed mediation

9.8The arguments in favour of court-annexed mediation identified by the Access to Justice Advisory Committee were:

(1)Reduction of costs, as disputes are settled earlier.  As a result, the court’s capacity to cope with its caseload will be increased,

(2)ADR gives an opportunity to make better use of existing resources, and

912 Supra at paragraph 11.6.

913 Ibid, paragraph 11.45.

914 They noted that no Federal court has the power to so refer, without the consent of the parties.

915 Street, “The Court system and Alternative Dispute Resolution Procedures” 1 Australian Dispute Resolution Journal 5, 10, (1990).

916 Street, “The Courts and Mediation - a Warning ”, 2 Australian Dispute Resolution Journal 203. (1991).

917 See Comment (1993) 67 ALJ 941, 942.

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