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Mediation Rules


Hong Kong Mediation Centre Mediation Rules
 

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INTRODUCTION

Mediation Rules (the "Rules")
These Rules are published by Hong Kong Mediation Centre (HKMC) developed in accordance with the Mediation Ordinance (Cap.620 Laws of Hong Kong) commenced on 1 January 2013. It is an ordinance which provides a regulatory framework in respect of certain aspects of mediation and to make consequential and related amendments. These Rules should also be interpreted with the Mediator"s Rules & Code of Ethics of HKMC.

Hong Kong Mediation Centre
HKMC was established in 1999 to assist disputing parties to solve their disputes by Mediation. HKMC is a legal entity in the form of a company limited by guarantee which has the status of a charitable institution recognised by the Inland Revenue Department of HKSAR. HKMC is also the first non-profit making mediation institution with charitable institute status in Hong Kong. The composition of HKMC is a group of professionals in various fields who are committed to promoting mediation as a way to resolve conflicts.

Suggested Mediation Clause in the contract
"Any dispute or difference arising out of or in connection with this contract shall first be referred to mediation at Hong Kong Mediation Centre (HKMC) and in accordance with its then current Mediation Rules."

THE RULES

Mediation

1. Mediation is a structured confidential, voluntary and private dispute resolution process comprising one or more sessions in which one or more impartial individuals (the mediator), without adjudicating a dispute or any aspect of it, assists the disputing parties  to reach a negotiated settlement.

Application of Rules

2. The Rules apply to the mediation .where the parties seek amicable settlement of their disputes under an agreemunder that these Rules shall apply either by stipulation in their contract or by agreement.

Initiation of the Mediation Process

3. (a) A party to the dispute may deliver a written request for mediation to the other party or parties with copies to HKMC to request for the initiation of mediation. Such request for mediation shall contain a brief self-explanatory statement of the nature of the dispute, the quantum in dispute (if any), the relief or remedy sought and nominating a mediator (or mediators) considered to be suitable for the disputes.
(b) The names, addresses, phone and fax numbers of all parties to the dispute, and those who will represent them, should be exchanged between the parties and also furnished to  HKMC.
(c) A responding time 14 calendar days should be clearly stated in the written request. Failure to reply should be treated as a refusal to mediate.

Response to Request for Mediation

4. A party or parties who receive a request for mediation shall notify  HKMC and any other parties within 14 calendar days in writing after  the receipt of such request, stating whether or not mediation will be adopted and any nominated mediator is acceptable. Failure to reply within 14 calendar days by any party shall be treated as a refusal to mediate.

Appointment of the Mediator

5. When the parties agree on a mediator and the proposed mediator is willing to serve, they will notify HKMC. The mediation shall then proceed in accordance with these Rules. If the parties fail to agree within the time frame stipulated in Rule 4 they will notify HKMC who shall then appoint a accredited mediator who is prepared to serve and is not disqualified under Rule 6.

Conflict of Interest

6. No person shall act as mediator in any dispute when that person has any financial or personal interest in the result of  mediation  unless the person is given consent by the parties. Before accepting an appointment, the proposed mediator shall disclose to the parties (and to  HKMC if it has made the appointment under Rule 5) any circumstances  reasonably considered to affect the mediator"s capacity to act impartially or prevent a prompt resolution of the dispute. Upon receiving the information HKMC shall immediately inform the parties for any comments. If any party takes objection to the proposed mediator within 7 days, the proposed mediator shall not be appointed. In such case  HKMC shall nominate another suitable accredited mediator.

The Mediation Process

7. Unless a consent is given by parties considering the special nature of the dispute, the mediator shall commence  mediation as soon as possible after his appointment and shall  endeavours to conclude the mediation within 42 days of his appointment. His appointment shall not extend beyond a period of three months without the written consent of all parties.

Role of the Mediator

8. The mediator may conduct the mediation in such manner, as he considers appropriate, taking into account the circumstances of the case, the wishes of the parties and the need for a speedy settlement of the dispute.

Role of the Parties

9. The mediator may communicate with the parties together or with any party separately, including private meetings and each party shall co-operate with the mediator. A party may request a private meeting with the mediator at any time. The parties shall give full assistance to enable the mediation to proceed and be concluded within the time stipulated.

Representation

10. The parties may be represented or assisted by persons of their choice. Each party shall notify in advance the names and the roles of such persons to the mediator and the other party. Each party shall have full authority to settle or shall be accompanied by a person with such authority.

Termination of the Mediation

11. The mediation process shall come to end:-
(a) Upon the settlement (in whole or in part) by the parties and the signing of a settlement agreement or any other written records of the settlement;
(b) Upon the written advice of the mediator after consultation with the parties that in his opinion further attempts at mediation are no longer justified or;
(c) Upon written notification by any party at any time to the mediator and the other parties that the mediation is terminated.

Confidentiality

12. (i) Mediation is a private and confidential process. Every document, communication or information disclosed, made or produced by any party for the purpose of or related to the mediation process shall be disclosed on a privileged and without prejudice basis and no privilege or confidentiality shall be waived by such disclosure. Confidentiality also extends to the settlement agreement except .where its disclosure is necessary for implementation or enforcement.
(ii) Nothing that transpires during the course of the mediation is intended to or shall in any way affect the rights or prejudice the position of the parties to the dispute in any subsequent arbitration, adjudication or litigation.
(iii) A person must not disclose a mediation communication except as provided by subsection (2) or 3) of Section 8 the Mediation Ordinance.

Costs of the Mediation

13. (i) Unless otherwise agreed, each party shall bear its own costs regardless of the outcome of the mediation or of any subsequent arbitral or judicial proceedings. All other mediation costs and expenses shall be borne equally by the parties and the parties shall be jointly and severally liable to pay to the mediator such costs, including:-
(a) the mediator"s fees and expenses;
(b) expenses for any witness or expert advice or opinion requested by the mediator
      with the consent of the parties (if any);
(c) expense on the meeting venue (if any); and
(d) any administrative costs in support of the mediation including HKMC"s costs.
(ii) The mediator may at any time during the mediation require the parties to make deposits to cover any anticipated fees and expenses and may suspend the mediation process until such deposit is made.
(iii) Any surplus funds deposited shall be returned to the parties at the conclusion of the mediation.
(iv) Notwithstanding Rule 13(i) above, the parties agree that any court or tribunal may treat both the mediation fees and each parties" costs as costs in the case in relation to any litigation or arbitration .where that court or tribunal has power to assess or make orders as to costs, whether or not the mediation results in settlement of the dispute.

Mediator's Role in Subsequent Proceedings

14. The parties undertake that the mediator shall not be appointed as an adjudicator, arbitrator or representative, counsel or expert witness of any party in any subsequent adjudication, arbitration or judicial proceedings whether arising out of the mediation or any other dispute(s) in connection with the same contract. No party shall be entitled to call the mediator as a witness in any subsequent adjudication, arbitration or judicial proceedings arising out of the same contract.

Exclusion of Liability

15. The parties jointly and severally release, discharge and indemnify the mediator and HKMC in respect of all liability whatsoever, whether involving negligence or not, from any act or omission in connection with or arising out of or relating in any way to any mediation conducted under these Rules, save for the consequences of fraud or dishonesty.

 

 

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