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THE LAW REFORM COMMISSION OF HONG KONG - page 288 / 360

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12.103Our initial view that a Working Party should be set up to consider a pilot project on court annexed family mediation was overtaken by events, as in October 1997 the Chief Justice, the Hon. Mr Justice Andrew Li, established a Working Group to consider a Pilot Scheme for the Introduction of Mediation into Family Law Litigation in Hong Kong (Pilot Scheme Working Group) chaired by the Hon. Mr Justice Hartmann.

12.104We welcome the establishment by the Chief Justice of the Pilot Scheme Working Group.  We recommend that it consider our recommendations on mediation, case management and our suggested pilot project to determine how they may assist their own recommendations.

12.105We suggest that a report be issued which will deal with the outcomes of the pilot project and make recommendations on which model for a family mediation court annexed scheme should be established permanently in Hong Kong.  The scheme should also include a parent education program.  Parenting plans should be encouraged by the court and other agencies.

12.106The pilot scheme could test out various models for different types of cases, for example, access and custody cases.  It could incorporate the tasks laid out by the Lord Chancellor in the White Paper outlined above.  The pilot scheme could test out the future arrangements for family mediation services used by the court, mediation outcomes and the costs of mediation.  It would be more realistic to assess the costs on the basis that mediation organisations are responsible for the full costs of overheads and mediators and administrators are paid at a market rate.1244

12.107The sub-committee propose that the pilot project would employ mediators to mediate in-house.  However, the project would also allocate a certain number of cases to private mediators on a fee per case basis, either directly or through a panel of private mediators in the Hong Kong International Arbitration Centre.1245  Community mediation agencies should also be used.  There would be the opportunity for parties to choose the mediator and, of course, parties might continue to organise mediation independently from the court and settle their differences away from the court process.

12.108 The pilot scheme should operate for three years.  That should give sufficient time to test out models, promote the use of mediation, and generate enough mediation cases to be able to evaluate the project.  That length would also tie in well with the time needed to draft and enact legislation to support the provision of family mediation.

12.109It is essential that the Judiciary and Social Welfare Department work with the non-governmental agencies and consult widely on any proposed plan for a pilot project for a court annexed scheme.  Any proposals should be explained and justified.  The proposed pilot project scheme needs to be presented in a well researched way, tailored to local conditions.

Management committee

1244 The English Law Society recommendations in Fairness for Families ibid at paragraph 5.12.

1245 The panel of mediators is administered by the Centre not by the Mediation Group even though the latter is a service of the Centre.

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