disputes. We further recommend that, once that legislation is enacted, the Legal Aid Department should establish a proper scheme for the funding of family mediation which will include education, publicity and screening of potential cases.
Privilege and confidentiality
12.129The term “privilege” is used in the sense that a person has the right in certain circumstances to withhold information from a court. The term “confidentiality” is used in the sense that a communication or information is recognised in law as being a ground for claiming privilege before the court. Confidentiality is essential in mediation to protect the integrity of the process, the parties’ interests and to encourage settlement through full disclosure. The Code of Practice adopted by the Mediation Group, Guidelines for Professional Practice of Family Mediators, imposes an obligation of confidentiality on the mediator to protect the information revealed by parties in the mediation process, except in certain defined circumstances.1260 It also indicates that the mediator will claim privilege if he or she is summonsed to attend court.
12.130The Law Commission of England and Wales recommended a statutory privilege should be conferred on statements made during conciliation procedures. Statements made which indicate a risk of harm to a child would be privileged but not confidential.1261 The Civil Evidence (Family Mediation) (Scotland) Act 1995 provides for the inadmissibility of evidence as to what occurred at a family mediation conducted by accredited family mediators.1262
12.131Various countries provide in primary or subsidiary legislation or Practice Directions for privilege for settlement or conciliation conferences.1263 There is also a common law privilege based on the public interest in the stability of marriage.1264 The Hong Kong Court of Appeal held in W v W1265 that the evidence given by a psychologist as a mediator and conciliator about the relationship was privileged.1266
12.132There are precedents in Hong Kong for statutory privilege. Part II of the Labour Relations Ordinance (Cap 55) provides for conciliation to resolve employment disputes. If the dispute is not settled, a conciliation officer shall make a report to the Commissioner, setting out the facts agreed between the parties and those that appear to be in dispute.1267 The Commissioner can then refer the dispute to a
1260 This is where the information discloses an actual or potential threat to human life or safety.
1261 Family Law, Grounds of Divorce, at paragraph 5.29 to 5.48. (1990: Law Com No.192).
1262 It implemented a Scottish Law Commission report, Report on Evidence: Protection of Family Mediation, Scot Law Com (1992: No.136).
1263 Section 18 of the New Zealand Family Proceedings Act 1980, section 19N of the Australian Family Law Act 1975 and Order 24(1)(8) of its Family Law Rules provide privilege for conciliation conferences. See the English Practice Direction (Family Division: Conciliation Procedure)  1 WLR 1420.
1264 Sir Bingham in the case of In re D (Minors)  2 WLR 721 at 726.
1265  1 HKC 430.
1266 This was in reliance on In re D (minors) 2 WLR 721.
1267 Section 4.