Electronic copy available at: http://ssrn.com/abstract=1934578 American Bar Association winter/spring 201111
Mediation and Civil Justice Reform in Hong Kong By Kun Fan
Kun Fan is an assistant professor at the Chinese University of Hong Kong and a member of the Chartered Institute of Arbitrators. She can be reached at kunfan@ cuhk.eduk.hk and thanks Cynthia Lee for her help in conducting research.
In response to social change and technological advances in Hong Kong that resulted in a sharp increase in civil litigation, the Civil Justice Reform (CJR) was implemented in April 2009. It was closely modeled on the Woolf Reforms in England, and according to Seagroatt J., a court of appeal judge, "the problems which gave the impetus to the Woolf proposals also exist [in Hong Kong]: delay, unwieldy procedure, excessive use of resources to advance or rebut a claim, and an unacceptable level of cost." Hong Kong Special Administrative Region Gov- ernment, Civil Justice Reform: Interim Report and Consultative Paper, Nov. 21, 2001, at 15. In addition, Hong Kong's legal system had suffered pres- sures caused by complexity and unrep- resented litigants (Interim Report, at 15-16).
The final report of the Chief Justice's Working Party on CJR was published on March 3, 2004, after a seven-month consultation period; it contains 150 recommendations. In particular, the Working Party identifies the underlying objectives of the civil justice system, one of which is facilitating settlement. Mediation is recognized in particular as giving effect to this underlying objec- tive. In response to the final report, the judiciary promulgated a Practice Direc- tion on Mediation (PD 31), which became effective on January 1, 2010. It seeks to provide a framework within which the court can discharge its duty to facilitate the use of mediation when exercising its case-management pow- ers and for the parties to make use of mediation in appropriate cases for the
settlement of their disputes. To what extent may the CJR and PD
31 change the practice of the courts in the administration of civil justice, and eventually affect the overall litigation culture in Hong Kong?
Can the Court Order Unwilling Parties to Mediate? It's generally accepted that the court, in the absence of a specific statutory provi- sion, does not have jurisdiction to order a reluctant party to submit its dispute to mediation. In other words, there is no power to order mediation under common law or as part of the court's inherent jurisdiction. Gary Meggitt and Farzana Aslam, "Civil Justice Reform in Hong Kong: A Critical Appraisal," 28 C.J.Q 1 (2009), at 112.
In the United Kingdom, while the courts have a duty under the overrid- ing objective to encourage alternative dispute resolution (ADR) where ap- propriate, it is not, as yet, compulsory. The court of appeal has held that the court has no power to order the parties to mediate, but simply to encourage it. In Halsey v. Milton Keynes General NHS Trust, Dyson J. stated...