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THE LAW REFORM COMMISSION OF HONG KONG - page 274 / 360

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12.43There should be a clear distinction between issues conferences and settlement conferences as they have different purposes.  It is also useful to make provision for a conference focusing on trial management, which would be a formal pre-trial review in the event that a settlement conference fails.

Pre-trial conferences

12.44The Saskatchewan Law Reform Commission suggested that a provision be inserted in custody legislation for pre-trial conferences.  This provision combines the functions of  issues conference and settlement conferences as follows:1199

“(A)Upon first appearance before the court in an application for custody,  or at any time prior to the hearing of the application, the court may direct a pre-trial conference before the judge or other person designated by the court, for the purpose of:

(i)resolution or narrowing of issues;

(ii)disclosure of the nature of the evidence which will be presented at the hearing;

(iii)encouragement of settlement or conciliation; and

(iv)settling procedures to be adopted in the proceedings including appointment of amicus curiae, and directions of a custody investigation.

(B)(1)Upon consent of the parties, the pre-trial conference may be arranged by the registrar without an order of the court directing the conference.  

(2)The pre-trial conference shall be conducted informally, in such manner as the judge or other person presiding at the conference may direct.  

(3)The judge or other person who presides at a pre-trial conference shall prepare a memorandum of the matters agreed upon by the parties at the conference, and shall present the memorandum of such parties for their approval and shall file the memorandum.

(4)No evidence disclosed at the pre-trial conferences shall be admissible as an admission made at the conference, or as part of a transcript or record of the conference without the consent of the parties”.  

12.45We recommend that statutory provision be made for issues and settlement conferences tailored to the needs of Hong Kong.  There ought to be a clear distinction between issues and settlement conferences.  These conferences would be separate from mediation.  A settlement conference would be a necessary step in the process unless there was a certificate filed by a party or the parties that an attempt at settlement in a settlement conference is likely to be unsuccessful and that costs would be wasted by such attendance.  

1199 Saskatchewan Law Reform Commission, Proposals on Custody, Parental Guardianship and the Civil Rights of Minors (December 1981), at 17.

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