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THE LAW REFORM COMMISSION OF HONG KONG - page 281 / 360

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The court’s powers in relation to mediation

12.70The report of the Chief Justice’s committee on court annexed mediation1218 recommended that the Arbitration Ordinance (Cap 341) be amended so that where the parties agree to go to mediation but cannot agree on a mediator the court could appoint a suitable mediator.1219  They did not recommend that judges would become directly involved in mediation, though they accepted that more case management would indirectly assist settlement.

12.71Section 19A of the Australian Family Law Act 1975,1220 empowered potential litigants to file a notice in the Family Court seeking the appointment of a mediator.  Section 19B gave power to the Family Court to refer proceedings to a mediator with the consent of the parties.  A power to refer to a specified mediator with the consent of the parties, or, failing agreement on the mediator, to a mediator appointed by the court, is given in section 47B of the Singapore Women’s Charter (Amendment) Act 1996.  The court may give consideration to “the possibility of a harmonious resolution” and for that purpose refers the parties to mediation.

12.72We recommend the adoption of the voluntary mediation recommendations of the report of the Chief Justice’s committee on court annexed mediation, to the effect that the court should only be able to order the parties to attend mediation if they agree.  Section 15A of the Matrimonial Causes Ordinance (Cap 179) allows the court to adjourn if there is a reasonable possibility of reconciliation.  There could be a similar provision to encourage mediation.  We recommend a provision on the lines of section 19A of the Australian Family Law Act 1975 empowering potential litigants or parties to file a notice in the Family Court seeking the appointment of a mediator.

12.73We also recommend that a provision be enacted that where the parties agree to go to mediation, but cannot agree on a mediator, the court could appoint a suitable mediator.1221  We agree that judges should not become directly involved in mediation.  If one party does not consent to adjourn the case for mediation then the judge can use his best endeavours to encourage mediation.

12.74We also recommend that before a case is set down for hearing the parties should provide a certificate to satisfy the court that mediation was or was not considered, or that it was not appropriate.

Compulsory powers

1218 Report and Recommendations of The Chief Justice’s Committee on The Desirability of Introducing a Court Annexed Mediation Scheme in Hong Kong and related matters, August 1993.  

1219 This would be broader than the existing section 2A of the Ordinance, which provides that where an arbitration agreement provides for the appointment of a conciliator by someone other than the parties (for example, the Secretary General of the Hong Kong International Arbitration Centre), and that person fails to appoint or refuses to appoint, then the court may appoint a conciliator.

1220 Inserted by the Courts (Mediation and Arbitration) Act 1991.

1221 This would be similar to the existing power  of the court under section 12 of that Ordinance to appoint an arbitrator where the parties fail to agree on the arbitrator, or the latter refuses to act or in certain other circumstances.

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