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THE LAW REFORM COMMISSION OF HONG KONG - page 282 / 360

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12.75In Hong Kong, the Chief Justice’s committee suggested that further consideration, after wider consultation, should be given to (1) whether a court should have power to order the parties to attend a mediation procedure if the court thinks it appropriate, and (2) whether the judge should have power to refuse to set down an action until the parties had certified to the judge that they had attempted some form of mediation.  The committee saw merit in giving the latter power to a judge.  This power could be exercised on one party’s application only, which would make the power quite coercive.  The committee, after consultation with the Law Society and the Bar Association, concluded that at this stage it would not recommend compulsory powers to compel parties to attempt mediation.  The report has not been implemented to date, but we accepted that its recommendations are relevant to our reform proposals for the resolution of custody and guardianship disputes.

12.76We see some merit in giving power to a judge to refuse to set down an action until the parties have certified to the judge that they have attempted some form of mediation.  We also note a recommendation that a judge should have power to recommend that the parties attempt to resolve matters through mediation, and if necessary in exceptional cases, to require them to do so.1222  However, we do not agree that mediation should be compulsory at this time.  We welcome submissions from consultees on whether or not the Chief Justice’s report’s proposal on compulsory mediation should be adopted for the resolution of custody and guardianship disputes.

Counselling conference

12.77In chapter 9 we referred to the Australian system of conciliation counselling and conciliation conferences which are quite different processes to mediation.  Conciliation counselling takes place at a conciliation conference with a court counsellor which is designed to reduce conflict and encourage agreement of practical issues, particularly issues concerning residence and contact.  The court counsellors are social workers or psychologists specially trained in dealing with relationship breakdown.  Conciliation counselling has broader aims than mediation, in that it can include counselling to help parents and children to adjust to the separation and work through their anger and hurt.  Parents are encouraged to make use of these processes to avoid having a contested hearing which only entrenches the conflict between them.  We also referred to the New Zealand system of conciliation counselling.

12.78Section 62F of the Australian Family Law Act 19751223 gives a discretion to the court, in relevant proceedings,1224 to direct parties to a conciliation conference to discuss a child’s care, welfare and development, and to try and resolve the differences between the parties.  However, a parenting order cannot be made unless the parties have attended a conciliation conference, though there are

1222 Paragraph 7.37 of the Irish Law Reform Commission Consultation Paper supra. This was not a recommendation in the final report though there is no reference to why the recommendation was dropped.

1223 As substituted by the 1995 Act.  The rules of court were amended in 1995.  See Order 24 relating to conciliation conferences.

1224 This concerns the care, welfare and development of a child who is under 18.

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