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THE LAW REFORM COMMISSION OF HONG KONG - page 258 / 360

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Judicial mediation/conciliation

11.9Where the parties cannot reach agreement, mediation conducted by the judge will take place before a hearing and the parties will be encouraged to reach agreement.  Article 9 of the Law of Civil Procedure 1991 provides that the people’s court shall conduct conciliation for the parties on a voluntary and lawful basis.

11.10If they cannot reach agreement through mediation then a contested hearing will ensue.  The Supreme People’s Court have issued judicial interpretations called “Several Opinions on the Applicability of the Law of Civil Procedure” which provide directions to the people’s court that it should render judgement without delay if the parties insist on not having conciliation.  If they do reach agreement in mediation, the court will issue a conciliation statement which has the same legal effect as a court judgement.1135  It is signed by the judge, sealed by the people’s court and served on both parties.  It then becomes legally effective, and has the same enforcement powers of an order.

Judge’s role

11.11The judge chairs the divorce case and conducts the proceedings.  The judges are trained as mediators.  Since the enactment of the Law of Civil Procedure in 1991, unless there is a special situation, a divorce can be granted in five to six months.  In a family case the court will generally order the parties to share costs equally.  However the court has a discretion if the husband is in a better financial position to order him to pay a greater share of costs.  

11.12Cohen noted the higher percentage of reconciliation achieved through mediation.1136  The court is legally required to attempt a reconciliation before granting a divorce.  If this is not acceptable the court will either reject the application or the court will attempt informal mediation prior to trial.  In dealing with a divorce case, “the people’s court shall carry out mediation; divorce shall be granted if mediation fails because mutual affection no longer exists”.1137  The court will try to get the parties to agree in mediation to custody and other matters.  

1135 Article 89 of the Law of Civil Procedure 1991.

1136 See infra.

1137 Article 25 of the Marriage Law supra.

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