Features

When asked to review four new books on Mediation in Hong Kong my initial response was one of enthusiasm. As a full time mediator, I had appreciated that there was a gap in the legal publications market. I looked forward to reading the views and insights of a number of well respected and experienced mediators in Hong Kong.

I will confess that when faced with the pile of books sent over to
me, I had a moment of doubt. Several, in fact. After all, as interested as one might be in a subject, reading four academic texts on that same subject back to back was unlikely to be ... well, that interesting.

Fortunately, the four books were surprisingly different in style. Whilst covering a lot of the same ground, they differed in their approach sufficiently to keep this reviewer reading.

The books reviewed were (in no particular order):

• Butterworths Hong Kong Mediation Practical Guide – Ken C To (LexisNexis, 2010)
• Mediation Theory and Practice in Hong Kong – Sarah E Hilmer
(LexisNexis, 2010)
• Mediation Process and Practice in Hong Kong – Nadja Alexander (LexisNexis, 2010)
• Hong Kong Mediation Handbook – Dr Raymond HM Leung
(General Editor) and a team of expert contributors (Sweet & Maxwell, Dec 2009)

If you are a legal practitioner and new to mediation then Ken To’s
book is probably a good place to start. It provides a concise brief on the most important aspects of mediation, the process, the bodies involved in mediation in Hong Kong and what to do if you find yourself representing a client whose dispute is going to mediation. The title says it is a practical guide and that is exactly what it is. The approach of the book is perhaps too general for it to be of much interest to someone practising as a mediator because it covers much the same ground as mediation training courses. If I had a criticism of the book it would be the prominence it gives to the Centre for Effective Dispute Resolution (CEDR). Whilst in no way wishing to denigrate the valuable contribution which CEDR has made to the development of mediation in Hong Kong, it is after all not a Hong Kong institution
and the book perhaps is a little misleading in the way that CEDR is presented.

Sarah Hilmer is an Assistant Professor at The Chinese University of Hong Kong, and being an academic, it is unsurprising that her book takes a more academic and theoretical approach. That is not to say that the book is not practical. It is, and it contains throughout the book useful summaries specifically for mediators and lawyers. Lists are also plentiful and can be quickly referred back to as an aide memoir.

The book is wide ranging and covers conflict theory, a discussion on negotiation processes, a guide to Hong Kong case law, as well as an almost ‘How To’ guide to mediation. It is, however, actually quite short once the extensive appendices are taken into account (this is true of Ken To’s book as well). Although Ms Hilmer makes some interesting points, it is a little disappointing that some were not developed more fully. Accordingly, this book is more like an advanced introduction to mediation than a book that an experienced mediator will refer to in order to develop his or her skills. However, for newly qualified mediators it is undoubtedly useful. Legal practitioners with some mediation experience will also find it worthwhile, particularly as an entire chapter and many sections of the book are directed specifically to the lawyers’ role in mediation.

Nadja Alexander is another academic, this time a Professor of Law at the City University of Hong Kong. Do not let this put you off though, as she writes with a refreshingly unacademic style (in a
good way) and keeps the reader interested by including many personal and some, one presumes, fictional anecdotes at the beginning of each chapter to introduce the subject to be  discussed. This serves to pique one’s interest and also provides a ‘real life’ context to the material that she is about to cover.

The book is divided into two parts. The first deals with ‘Process’, and is therefore of more interest to those practising as mediators.
The second part deals with ‘Practice’, that is the legal background and framework within which mediation operates. This part is perhaps of more immediate relevance to lawyers acting for clients in mediation, although mediators would find it worthwhile reading as well.

Of the books covered so far, this is the most Hong Kong-centric. The first part covers a lot of theory and applies it directly to Hong Kong culture or rather the mix of cultures that exists in Hong Kong.
As a mediator practising in Hong Kong, I found her discussion of intercultural mediation extremely interesting and it certainly left me with topics for further thought. As already mentioned, the first part
of the book is clearly aimed more at mediators than legal practitioners and at the end of each chapter there is a ‘Mediator Learnings’ section which recaps the lessons to be learnt from the material just covered and provides tools for good practice (or pitfalls to be avoided). Non mediator readers who are heavily involved in mediation or perhaps just interested in the subject of human conflict and the way it is dealt with in different situations should also pick up a copy of this book. It is very thought provoking.

Whilst the second part continues to focus on Hong Kong, it also develops the theme of looking and comparing practice and experience in other jurisdictions. As many of those jurisdictions have had court-related mediation for a long time there are clearly lessons to be learnt, and this makes for interesting reading.

The second part also takes a much more technical approach, looking at the rights and duties of those involved in mediation, and the consequences of breach in some detail. It considers and makes reference to a lot of the Hong Kong (and non-Hong Kong) case law.

In summary, this is a book that will prove useful to legal practitioners and to anyone who has recently qualified as a mediator and may be considering launching a career as a mediator. This book provides a lot of insight and practical guidance.

The final book reviewed is the Hong Kong Mediation Handbook with Dr Raymond Leung as General Editor and authored by ‘a team of expert contributors’. When one opens the book one realises that this book is the work of many very experienced people. As explained by Dr Leung himself in the preface, the book is intended to be brief and concise, but it can also be used as a textbook for a mediation course.

This book is another book of two parts. The first covers the various principles that underlie or apply to mediation. The second part seeks to apply those principles to different types of disputes. The book comprises a series of chapters each of which is written by one of the contributors. As remarked by Sir Laurence Street in his foreword, it is a collection of articles by experienced Hong Kong mediation practitioners. This is interesting because the reader benefits from the insights of mediators with a very wide range of backgrounds, from engineering and construction (an industry which has a long history of mediation in Hong Kong) through to family law specialists, psychologists and criminologists.

As one would expect with this range of authors, each chapter varies in style. Some are drier than others, but that is, in fairness, a reflection of the topic rather than the author. Other chapters are quite fascinating, and one is sometimes left wishing that the book was not so ‘brief and concise’. For those readers who are not Chinese there is useful guidance on the Chinese cultural response to mediation and different negotiating techniques.

Where the book is truly useful, however, is in the latter half where it contains numerous detailed case studies dealing with specific types of mediation, or rather mediation in specific genres of conflict such as divorce, family property, victim/offender, employment, construction and business disputes. Each case study includes an analysis of the approach taken by the mediator and considers why the techniques used may or may not have been useful. This part of the book is of obvious use to beginner mediators, and also those with considerable experience. If you are mediating in Hong Kong, this book should probably be on your shelf.

In conclusion, there are now four helpful books available which are specific to mediation to Hong Kong. There is something for everybody, whether a lawyer new to mediation or a mediator with some years of experience. Each book has something to commend it, and a couple provide a good base for future books which could develop further the discussion of the unique multi-cultured nature of mediation in Hong Kong.

Susan Macnaughton
Consultant
Gall