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THE LAW REFORM COMMISSION OF HONG KONG - page 239 / 360

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Mediation and the Co-ordinator

9.104It is important to note that the Co-ordinator also refers cases to mediation, though the legislation does not in fact mention this service.  Chart’s report1044 noted that the bulk of counselling work involved conciliation with a view to reaching settlement.  Indeed, Maxwell found that 77% of couples reached full or partial agreement through these referrals.1045  It is unfortunate that the terminology still uses only the terms “counselling” and “conciliation” rather than also including mediation.

9.105The Boshier report1046 called for a separate Family Conciliation Service in which mediation counselling would be available to assist the mediation process if necessary.  The Counselling Co-ordinators would have a key role, being responsible for “early classification and referral of cases and public education”.  Extra clerical assistance would enable them to concentrate on client contact, case assessment and referral, liaison with professional groups and public education activities.

Mediation conference

9.106 Where the parties have been unable to resolve their problems with a court counsellor, spouses who have made an application for a separation or maintenance order,1047 or an application for custody or access to a child,1048 are able to request a mediation conference, or it may be requested by a Family Court judge.1049 1050  Section 17 of the Family Proceedings Act 1980 gives power to direct attendance at mediation but it has rarely proved necessary to invoke this power.1051  The parties’ lawyers can attend with them if the clients so request.

9.107The mediation conference is often preceded by the preparation of specialist reports.  These reports are available to the Chairman (who is a Family Court Judge), the lawyers, and usually the parties.  If this does not resolve the matter, a hearing date may be set.  Even then, cases are sometimes resolved at a pre-trial conference.

9.108Between 1982 and 1988, the number of counselling referrals increased from 37.5% to 78.6%, while the number of mediation conferences dropped from 26% to 14.8%.1052  Section 14(2) of the Family Proceedings Act 1980 provides that the

1044 Paper to the Commonwealth Law Ministers Conference “Some New Zealand Initiatives in Alternative Dispute Resolution”, Auckland 1990.

1045 See supra.

1046  This is summarised in Boshier, “New Zealand Family Law Report”, Family and Conciliation Courts Review, Vol. 33, No.2, April 1995, 182-193.

1047 Section 13(1)(a) of the 1980 Act.

1048 Section 13 (1)(b) of the Family Proceedings Act 1980.

1049 Chart, “Some New Zealand Initiatives in ADR”, Paper to the 1990 Meeting of the Commonwealth Law Ministers.

1050 Section 13(2)(b) of the Family Proceedings Act 1980.

1051 Chart, supra at 606.

1052 Maxwell, supra at 52.

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