The Mediation Bill that we wrote about in our e-bulletin of 28 November 2011 has now been gazetted by the Hong Kong Government. This means that the Bill is now an Ordinance (known as the “Mediation Ordinance”) and will take effect on a day shortly to be announced by the incoming Secretary for Justice after 1 July 2012.
The Mediation Ordinance largely mirrors the Bill, but for some relatively minor details. For example, the Mediation Ordinance slightly expands the limited circumstances in which a person may disclose a “mediation communication” (as defined in section 2) as of right i.e. without needing the prior permission of the court. In addition to the limited circumstances set out in our earlier e-bulletin, a person may disclose a mediation communication if “the disclosure is made for the purpose of seeking legal advice” (section 8(2)(f)). That extra provision is uncontroversial, self-explanatory and reflects practice.
Unlike some other proposed legislation, the Mediation Ordinance has had a relatively smooth path through Hong Kong’s Legislative Council, since being introduced on 30 November 2011. This reflects the fact that the Mediation Ordinance is not controversial and that all stakeholders in Hong Kong are keen to further the jurisdiction’s status as a leading international dispute resolution centre. The two primary purposes of the Mediation Ordinance are: (i) to promote and encourage mediation for the resolution of disputes in Hong Kong and (ii) to put the confidentiality of mediation communications on a statutory footing (in addition to the contractual confidentiality of the mediation process and the convention of the “without prejudice” nature of mediation communications as between the parties).
The Mediation Ordinance applies to any “agreement to mediate” (as defined in section 2) pursuant to which the mediation is wholly or partly conducted in Hong Kong or if the agreement to mediate provides that Hong Kong law (or the Ordinance) is to apply and irrespective of whether the agreement to mediate or the mediation pre-dates the coming into force of the Ordinance (section 5).
The Mediation Ordinance also applies to the Hong Kong Government (section 6), in contrast (say) to the recently passed Competition Ordinance (which, in large part, exempts virtually all of the several hundred statutory bodies in Hong Kong).
The Mediation Ordinance does not apply to a number of statutory backed “conciliation” or specific mediation processes that are set out in Schedule 1 of the Ordinance.
The proposal for a single accreditation body for mediators in Hong Kong is still a work in progress and will need to take into account the interests of various interested parties.