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THE LAW REFORM COMMISSION OF HONG KONG - page 248 / 360

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session, the judge may adjourn and order attendance or they may opt to attend voluntarily.  The registrar cannot schedule a pre-trial conference until the certificate of completion is filed.

10.28If only one attends the session that person can request a certificate of non-attendance of the other party from the mediator.  The other party may then be ordered to attend by the court or their pleadings can be struck out.  They are encouraged to maintain contact with their lawyers to ensure that mediation agreements are in compliance with the law.  The research showed that the vast majority of those attending the screening session found them informative and helpful.1088

10.29The Department of Justice of Saskatchewan established a Mediation Services Branch in 1988.1089  By 1993 it had employed 24 mediators and covered family law, business and family partnerships, and estate issues.  In 1990, the Children’s Law Act provided that, at the request of either the applicant or the respondent, the court may appoint a mediator to resolve contested access and custody issues.1090  The mediator must consent to act.  Lawyers have an obligation to inform their clients of mediation facilities.  The mediation programme can take referrals from the medical profession, the public and other government agencies.1091  The mediator ensures that the lawyers for each party agree to the referral to mediation, and he informs them of progress during the mediation and copies correspondence sent to the clients.  Fees are payable and some financial support is given through Legal Aid.

Duties of lawyers to give information

10.30 Section 9(2) of the Federal Divorce Act 1985 requires lawyers who act in divorce proceedings to inform their clients “of mediation facilities known to him or her that might be able to assist the spouses in negotiating [the matters that may be the subject of a support order or a custody order]”.  

Information on services

10.31In 1987 the Department of Justice prepared a publication1092 which was to assist family lawyers to advise their clients of mediation, reconciliation and divorce services.  This was to comply with the obligation on lawyers to furnish this advice to their clients.1093  Across Canada, 53.2% of mediation and reconciliation services were reported to be private practice, 2.5% were through the Family Court, 11.8% were government services, 17.2% were law offices, 8.5% were non-profit community services, 4.9% were other services, and 1% were other court based services.

1088 Idem.

1089 Alberta Research Paper (1994) at 21.

1090 Children Law Act, SS , c C-8.1, section 10.

1091 Alberta Research Paper, (1994: No.20) supra at 22.

1092 An Inventory of Divorce Mediation and Reconciliation Services in Canada, (1987).

1093 Section 9(2) of the Federal Divorce Act 1985.

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