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12.137Under Order 25A, rule 12, of the Australian Family Law Act Rules, the mediator is required to advise the parties that they should obtain legal advice as to their rights, duties and obligations, at the commencement of mediation, and at any other time, if the mediator considers it appropriate, and at the conclusion of mediation and before any agreement become legally binding.  This provision would be reassuring to lawyers, judges and clients.  We also note that the English Family Law Act 1996 makes provision for mediators to be bound by a code of practice which includes a provision that each party is informed about the availability of independent legal advice.1271  We recommend that a provision on the lines of Order 25A, rule 12 of the Australian Family Law Rules should be adopted.

Enforcement of mediation agreements

12.138Concern has been expressed by lawyers about parties entering into mediation agreements without legal advice.  The Court of Appeal in W v W1272 confirmed that it would normally give effect to an agreement fairly arrived at which had the benefit of competent legal advice, unless there were substantial grounds for concluding that injustice had been done.

12.139Parties are strongly encouraged to obtain independent legal advice so that they do not run the risk of an application by one of them to set aside the mediation agreement, or have difficulty enforcing it.  The Law Society suggested that parties who reach a mediation agreement, without the benefit of independent legal advice, risk having the court set it aside unless there were amendments to section 14 of the Matrimonial Proceedings and Property Ordinance (Cap 192).1273  Section 14 provides that a provision in a maintenance agreement restricting the right to apply to a court for an order concerning financial arrangements is void.  In fact, section 15 gives the court power to alter the maintenance agreement.  We take the view that care needs to be taken in the drafting of mediation agreements concerning financial arrangements so that it does not appear that the jurisdiction of the court is being ousted.  We do not see the need to amend section 14.  We have already recommended that parties should be encouraged to obtain independent legal advice before completing a mediation agreement.  We do not see the need to amend section 14 of the Matrimonial Proceedings and Property Ordinance.

Arrangements for children

12.140We considered that it was necessary to set out how mediation agreements or parenting plans would fit into the existing court process.  A divorce petition and a statement as to the arrangement for the children1274 which are filed in the court are subject to the scrutiny of the judge to ensure compliance with section 18 of the Matrimonial Proceedings and Property Ordinance (Cap 192).1275  A decree absolute cannot be made without the court being satisfied of these arrangements.

1271 Section 27 of that Act, inserting a provision into Section 13B(7)(d) of the Legal Aid Act 1988.

1272 [1994] 1 HKC430.  See chapter 2 supra.

1273 This was in a submission to the Hong Kong International Arbitration Centre when it proposed establishing a family mediation service in 1992.  See “Family mediation proposed”, The New Gazette, July 1992.

1274 Form 2B as provided for in rule 9(3) of the Matrimonial Causes Rules.

1275 We have considered this provision supra.

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