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institute a court annexed mediation scheme.  Nonetheless, this option should be examined again when a reasonable pool of professionally qualified mediators are available in Hong Kong”.1232

12.90It is true that problems of court congestion, delay and increasing costs will not be completely alleviated by the diversion of cases to mediation outside the court.1233  Wright recommended that the problems can be addressed by the provision of a court annexed mediation scheme.1234  The New South Wales Law Reform Commission1235 recommended that court dispute resolution programmes must operate in accordance with clear guidelines and adequate resources, to ensure the integrity of the process and the quality of service.

Social Welfare Officers and mediation

12.91A secure professional and institutional base with a clear identity is essential to any service operating in the complex area of divorce.  Otherwise staff will need to spend more resources on establishing and sustaining their own identity.  The Montreal family mediation program in Canada was found by researchers to be the most effective and the most structured.  The mediation service was a separate service and did not have to compete with other services, such as the provision of custody assessments or reports.1236  

12.92There is a need to clarify, in organisational terms, who is to carry responsibility for mediation services in the Family Court, to avoid confusion between the original role of a social welfare officer performing investigative roles and the new role of mediator, if performed by a social welfare officer.  The roles of the three different processes (mediation, investigation and counselling) must be kept separate, so that integrity is preserved.1237  A Registrar’s Direction, Children: Inquiry and Report by a Welfare Officer1238 succinctly dealt with the separation of functions as follows:

“It is the function of the Welfare Officer to assist the court by investigating the circumstances of the child concerned and the important figures in their lives, to report what he sees and hears, to offer the court his assessment of the situation and, where appropriate, to make a recommendation.  In such circumstances, it is not the role of the Welfare Officer to attempt conciliation, although he may encourage the parties to settle their differences if the likelihood of a settlement arises during the course of his enquiries.”

1232 Supra at paragraph 12.3.

1233 Wright “Alternative Dispute Resolution and Case Management”, Hong Kong Lawyer, (September 1994), 18, 19.


1235 Alternative Dispute Resolution: Training and Accreditation of Mediators, (1991: Report No. 67) at 70.

1236Richardson, Court-based Divorce Mediation in Four Canadian Cities: An Overview of Research Results (1988).  See chapter 10 supra.

1237Clulow and Vincent, In the Child’s Best Interests: Divorce Court Welfare and the Search for a Settlement (1987).

1238 [1986] 2 FLR 171, (England).

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