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priority.  This may encourage earlier settlement by solicitors and/or referral to a mediator for the resolution of disputes on guardianship and custody.

12.34It is recommended that a Family Lawyers’ Code of Practice be adopted in Hong Kong. This may encourage a more conciliatory approach by solicitors. We recommend that, in principle, there should be two codes, one for the conduct of family cases and the other for conducting cases where children are separately represented.

Case management and settlement

12.35Case management shifts the responsibility of managing cases from the lawyers to the judges and facilitates early resolution, reduces delay and backlogs, reduces the cost of litigation and adds to the satisfaction of litigants.1187  A settlement conference is one of the processes of case management that can encourage the right atmosphere for settlement at an early stage in the judicial process.  Such conferences can be operated by judges or registrars, though at the moment there are no registrars for management of family cases.  More intervention by earlier case management may encourage settlement.  The judges would also have more time to scrutinize the arrangements for the children which are the subject of consent orders.  Boshier warned that case management techniques should be used as a means to effective dispute resolution and not as ends in themselves.1188  Program objectives of:

“case management (and the reduction of court delay) should not be the sole or primary reason for implementation of a program, thereby reducing rather than enhancing the rights of the parties ....  It is this objective which presents the greatest danger of coercion occurring.”1189

Practice Direction

12.36The Court of First Instance Construction List Practice Direction and checklist requires parties to inform the court, at the summons for directions stage, “whether any and if so what attempts have been made to resolve the dispute or any part of it by mediation.  This requirement does not entail disclosing the details of any mediation, only the fact of it having taken place.”1190  A pre-trial checklist must be completed, which asks the parties whether a pre-trial review would be useful.  Each party is to receive a document, prepared with the approval of the Chief Justice, which sets out the benefits of mediation, explains how the services of a mediator can be obtained and states that if the mediation is not successful this will not affect the litigation.  An Information Sheet must be completed which includes a question whether the lay clients have received this document from the Court.  Some of the questions which focus on resolution are as follows:

1187 See definition in the report , Civil Justice Review, First Report, Ontario Attorney General and the Chief Justice of the Ontario Court of Justice, March 1995.

1188 Infra at paragraph 7.2.3.

1189 Katz, “Compulsory Alternative Dispute Resolution and Voluntarism: Two-Headed Monster Or Two Sides Of The Coin”, Journal of Dispute Resolution, (1993) Vol. No.1, 1 at 71-2.

1190 HKLD [1992] H 111.

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