Features

Mediation has been very much in the spotlight over the past year or so with the advent of Hong Kong’s Civil Justice Reform on 2 April 2009. Indeed, mediation as a concept is incorporated in the underlying objectives of Order 1A.4(2)(e) of the new Rules of the High Court (Cap 4A). The courts play an important and active role in case management by encouraging parties to a dispute to have recourse to alternative dispute resolution procedures, where appropriate, and facilitating the use of such procedures.

Many learned articles in this journal et al have been penned about mediation but fewer textbooks on the subject have been attempted. Sarah Hilmer’s tome is timely in its publication given the heightened interest in mediation as an ADR mechanism. In this, the second installment of a series entitled ‘International Commerce and Arbitration’, the author embarks on a comparative tour of the mediation process in the PRC and Hong Kong.

The book provides extensive material on the history of mediation with source references for the avid historian who wishes to delve more deeply into its origins. As a general overview, the text consolidates in one volume a comprehensive analysis of the subject matter. As such, it fills a much needed lacuna in the legal practitioner’s library.

In the early chapters, the author provides a comprehensive review of the development of PRC mediation as a process which has its origins in early dynasties and asserts that mediation was alive as far back as 2070 to 1600 BC. The study is primarily based on research by literary review, with a focus both on theory and practice.

After considering in some detail the legislative and judicial approaches adopted in the PRC and Hong Kong in a trite and detailed exposé of the subject, the author concludes that neither legal system has a ‘mediation law’ as such and that mediation is modeled as a process. The Hong Kong mediation system has developed from a set of procedural rules whereas in the PRC a more generalist approach is adopted based on Confucian principles.

The thrust of Sarah Hilmer’s message is set out in her ‘comparative analysis’ between mediation in the two jurisdictions. This analysis concludes by drawing an analogy between mediation sectors in common to both systems: family and community mediations coupled with commercial and construction mediations. In addition, there is overlap between the Civil Justice Reform in Hong Kong and the PRC's Civil Procedure Rules. The PRC’s Rules already incorporate mediation provisions and the new Civil Justice Reforms make extensive reference to mediation.

Probably due to timing, one omission from the text is Practice Direction 31, which was issued at about the time of publication of the book. This is a landmark practice direction which will place mediation in Hong Kong firmly on the map as a dispute resolution tool. The practice direction comes into effect on 1 January 2010 and contains extensive provisions relating to mediation in most civil proceedings (construction and personal injuries being the principal exceptions). For example, the court may stay proceedings to enable the parties to attempt mediation and, more pointedly, it may exercise its discretion as to costs and make an adverse costs order in circumstances where a party unreasonably fails to engage in mediation. Watch this space!

The text also identifies key differences between the process in the PRC and in Hong Kong. One such difference is that in court mediation as practised in the PRC, the judge adopts the role of judge and mediator with the ability to switch between roles during the mediation process. Moreover, the PRC mediators are accorded far greater powers compared to their Hong Kong counterparts. For example, the mediators determine the factual matrix, they decide whether or not to mediate in the first place and when to litigate. Such concepts are alien to the Hong Kong mediation process which is premised on the parties to a dispute making all the decisions, with the traditional role of the mediator limited to that of facilitating a consensual outcome.

In the PRC, the China International Economic and Trade Arbitration Commission places significant emphasis on the combination of mediation and arbitration in the settlement of disputes. The Arbitration Law of 1994 combines the process whereby the arbitrator may act as such or switch to a mediation role at any time in the proceedings. In Hong Kong, the jury is still out as to the use and effectiveness of the hybrid process of mediation within an arbitration. The potential inability of an arbitrator to retain his integrity, independence and impartiality is cited by the author as one downside of embarking on the hybrid approach. That said, it remains to be seen whether the hybrid formula might find favour in Hong Kong arbitrations; this will depend on its application in actual cases.

The book concludes with a general overview of its major findings and the author’s perceived strengths and limitations of the research.

Sarah Hilmer’s text is a constructive guide to mediation in the PRC and in Hong Kong and one that provides the practitioner or academic with the tools to understand how mediation has developed in 'one country, two systems'. It would be of interest if a future edition were to incorporate the mediation process in Macau.

As mediation continues to take off in both Hong Kong and the PRC, perhaps the author will consider a future edition which captures the lessons learned from some live mediations. This will not be easy set against the confidentiality of the very large majority of mediations. However, as the effects of Civil Justice Reform begin to filter through, the real benefits of mediation to the parties to a dispute will no doubt be felt by the business community as providing a costeffective alternative to traditional litigation and arbitration. Perhaps the beneficiaries of a successful mediation would be willing to help others by extolling the virtues of mediation as a successful resolver of their particular dispute.