Parties’ Opening Statements In Mediation

I am Natalia Cheung, a Hong Kong International Arbitration Centre (HKIAC) Accredited Mediator and a practising solicitor in Hong Kong.

In this article, I would like to share with you the matters that would usually be included in the parties’ opening statements in mediation.

In mediation, the parties in dispute would be asked to give their respective opening statements after the opening statement of the mediator.

In making their opening statements, the parties would usually be asked by the mediator to:

ü   explain briefly and in their own words the disputes from their perspectives

ü   explain their reasons for participating in the mediation and their expectations from the mediation process

ü   explain their concerns and needs

ü   vent their emotions in a rational manner

ü   listen to the other party

After the parties have made their opening statements, their solicitors /legal representatives:

 

ü   may add their legal perspectives on the issues raised by their clients;

ü   should avoid taking an adversarial approach and using legal jargons

ü   should assist their clients by explaining the legal content of the dispute

 

During the delivery of the opening statements by the parties, mediator:

ü   should keep the talking time between the parties concise and balanced

ü   exercise active listening skills

ü   maintain eye contact

ü   note down the key issues raised by each party so as to understand their views, concerns and issues in disputes, and common grounds

 

For further information on mediation, please contact Ms. Natalia Cheung [(852)-6777 5767 or  E-mail: natalia@plaw.hk]

Natalia Cheung 

HKIAC Accredited Mediator & Hong Kong Solicitor

Pang Kung & Co., Hong Kong Solicitors & Notaries & Civil Celebrants of Marriages

 

What are the Purposes for Conducting Pre-Mediation Conference ?

 

I am Natalia Cheung, a Hong Kong International Arbitration Centre (HKIAC) Accredited Mediator and a practising solicitor in Hong Kong.

In this article, I would like to share with you the purposes of having a pre-mediation conference.

Purposes of Pre-Mediation Conference

ü   For the meditator to establish his/her role as an independent, neutral party to facilitate the parties   in dispute to achieve an amicable solution to the disputes

ü   To check whether the Agreement to Mediate has been duly signed, and the proposition papers, summaries and chronology of disputes, information about the parties, their positions and concerns and previous settlement negotiation, and reasons for the failure of such previous settlement negotiation have been provided to the mediator, and for the mediator to clarify any matters in relation to the information provided

ü   For the mediator to understand each party’s approach and concerns

ü   To confirm the participants of the mediation and whether or not the attendances of the mediation have authority to negotiate settlement and to settle the disputes

ü   To help ensure the parties in dispute are willing to attempt mediation to resolve their disputes

ü   To discuss the benefits of mediation

ü   To overcome any possible reservations towards the mediation process

ü   To ascertain whether there are any special needs of any party during mediation, e.g. interpreter  

 Solicitors may consider providing the following information to the mediator during the pre-mediation conference so as to increase the possibility of a successful mediation:

(1)   The common issues of the parties in disputes

(2)   What your client would like to achieve from mediation

(3)   Suggestions as to how to work towards the objectives of your client during the mediation process

 

 For further information on mediation, please contact Ms. Natalia Cheung [(852)-6777 5767 or  E-mail: natalia@plaw.hk]

 

Natalia Cheung 

HKIAC Accredited Mediator & Hong Kong Solicitor

Pang Kung & Co., Hong Kong Solicitors & Notaries & Civil Celebrants of Marriages

 

How to Resolve Differences Over the Choice of Mediator ?

 

 

I am Natalia Cheung, a Hong Kong International Arbitration Centre (HKIAC) Accredited Mediator and a practising solicitor in Hong Kong.

I would like to share with you the possible ways to resolve differences over the choice of mediator in civil proceedings.

In civil proceedings, if the parties have expressed their willingness to attempt to resolve their disputes by mediation by filing and serving their respective Mediation Certificates, the parties would then have to agree on the appointment of mediator.

However, sometimes each party would have their respective choices of mediator and the proceedings may come to a standstill as no agreement could be reached on the appointment of mediator.

In such circumstances, there are 2 possible ways in which the differences over the choice of mediator could be resolved, namely:

(1)    A joint application be made by the parties to the Court for direction on the appointment of mediator under Practice Directions 31; or   

(2)   A joint application be made by the parties to the HKIAC for appointment of meditator. The application fee is HK$2,000 for a two/three parties’ proceedings.  

 

For further information on mediation, please contact Ms. Natalia Cheung [(852)-6777 5767 or  E-mail: natalia@plaw.hk]

 

Natalia Cheung 

HKIAC Accredited Mediator & Hong Kong Solicitor

Pang Kung & Co., HK Solicitors & Notaries & Civil Celebrants of Marriages

 

Confidentiality of Mediation Communications

I am Natalia Cheung, a Hong Kong International Arbitration Centre (HKIAC) Accredited Mediator and a practising solicitor in Hong Kong.

I would like to share with you some information on the confidentiality of mediation communications

 

Pursuant to section 8 of the Mediation Ordinance (Cap.620), a person must not disclose a mediation communication provided that :

(a) the disclosure is made with the consent of—

(i) each of the parties to the mediation

(ii) the mediator (s) for the mediation; and
(iii) if the mediation communication is made by a person other than a party to the mediation or a mediator—the person who made the communication;

(b) the content of the mediation communication is information that has already been made available to the public, except for information that is only in the public domain due to an unlawful disclosure

(c) the content of the mediation communication is information that is otherwise subject to discovery in civil proceedings or to other similar procedures in which parties are required to disclose documents in their possession, custody or power

(d) there are reasonable grounds to believe that the disclosure is necessary to prevent or minimize the danger of injury to a person or of serious harm to a child well being;

(e) the disclosure is made for research, evaluation or educational purposes without revealing, or being likely to reveal, directly or indirectly, the identity of a person to whom the mediation communication relates;

(f) the disclosure is for seeking legal advice; or

(g) the disclosure is made in accordance with a requirement imposed by law.

The disclosure is made with the approval of the Court or tribunal—

(a)    for enforcing or challenging a mediation settlement agreement

(b)   for establishing or disputing an allegation or complaint of professional misconduct made against a mediator or any other person who participated in the mediation in a professional capacity; or

(c)    for any other purpose that the court or tribunal considers justifiable in the circumstances of the case.

 

In Champion Concord Limited v Lau Koon Foo (No 1), the Hong Kong Court of Final Appeal (FACV 16 & 17/2010) stated that：

“The fundamental importance of confidentiality in mediation is universally acknowledged and it can only be in highly exceptional circumstances that evidence which invades such confidentiality will be permitted to be adduced.”

This principle of confidentiality in mediation has subsequently been applied by the Lands Tribunal in Tsang Wing Lam v Incorporated Owners of King Tin Court and Prestige Construction & Engineering Co. Ltd. (LDBM 189/2012)

 

For further information on mediation, please contact Ms. Natalia Cheung [(852)-6777 5767 or  E-mail: natalia@plaw.hk]


Natalia Cheung 

HKIAC Accredited Mediator & Hong Kong Solicitor

Pang Kung & Co., HK Solicitors & Notaries & Civil Celebrants of Marriages

 

 

 

Making Offer in Mediation

Dear all,

Making Offer in Mediation

I am Natalia Cheung, a Hong Kong International Arbitration Centre (HKIAC) Accredited Mediator and a practising solicitor in Hong Kong.

I would like to share with you information on making offer in mediation.

 The offer made by one party to the opposite side during mediation would generally be viewed by the opposite side as falling into one of the following 3 categories:

(1) Insulting

(2) Credible

(3) Reasonable

 

(1)  Insulting offer: E.g. offer that has already been repeatedly rejected by the other side or any offer (if accepted) would mean a total loss to that party.

 

Making insulting offer to the opposite party would not generate any positive response and would probably ruin the mediation process. Party in mediation should avoid making such offer to the other side

 

Making an offer with too much of a concession would likely embolden the opposite side and create more difficulty in the negotiation process.

 

(2)  Credible offer:  This type of offer facilities the parties to anchor the negotiation and encourage mutual examination and adjustment of the expectations of both parties in attempting settlement by mediation. Parties should clearly indicate that the offer is negotiable or support their offer with explanation or justification in making offer that is at the borderline of a credible offer or an insulting offer.

 

(3)  Reasonable offer: It is an offer that would generally be acceptable to the parties in disputes and that settlement could be reached between the parties. Parties in mediation should therefore work together towards the making of such offer.

 

When the negotiation is in progress, the parties should enable the mediator to review and comment on the offers made by the respective parties, their negotiation pace and pattern, and the remaining gap between the parties. This in turn could help the parties to make an informed decision of whether smaller or large moves should be made in the negotiation process of mediation.       

 

For further information on mediation, please contact Ms. Natalia Cheung [(852)-6777 5767]

E-mail: natalia@plaw.hk

 

Natalia Cheung
HKIAC Accredited Mediator & Hong Kong Solicitor

Pang Kung & Co. Solicitors & Notaries & Civil Celebrants of Marriages

 

Disclaimer: The above is for your information and reference only. The contents do not constitute legal advice or a substitute for legal advice in individual cases.

 

 

Good Reason to Refuse Mediation ?

Dear all,

Good Reason to Refuse Mediation ?

I am Natalia Cheung, a Hong Kong International Arbitration Centre (HKIAC) Accredited Mediator and a practising solicitor in Hong Kong.

I would like to share with you information on whether the reasonable belief of a party of having a strong case could be regarded as a good reason to refuse mediation.

In the recent water leakage case of Good Try Investments Ltd. v Easily Development Ltd. (DCCJ 3346/2011), the Plaintiff claimed that it has a strong case and therefore refused to attempt mediation of a settlement of its claim.

The Hong Kong District Court has to decide whether it is a good reason to refuse mediation if the Plaintiff reasonably believes that it has a strong case.

In deciding on this issue, Deputy District Judge Tracy Chan referred to Dysan LJ’s speech in Halsey v Melton Keynes General NHS Trust [2004] 1 WLR 3002 which was cited by Lam J, as he then was, in Golden Eagle International (Group) Limited v GR Investment Holdings Limited HCA 2032/2007:-

“27. The fact that a party reasonably believes that he has a strong case is relevant to the question whether he has acted reasonably in refusing ADR. If the position were otherwise, there would be considerable scope for a claimant to use the threat of costs sanctions to extract a settlement from the defendant even where the claim is without merit. Courts should be particularly astute to this danger.”

“28. Large organizations, especially public bodies, are vulnerable to pressure from claimants who, having weak cases, invite mediation as a tactical ploy. They calculate that such a defendant may at least make a nuisance-value offer to buy off the cost of a mediation and risk of being penalized in costs for refusing a mediation even if ultimately successful.”

21. Lam J was of the opinion that the scenario as referred to by Dysan LJ was unlikely to occur in Hong Kong. Further he cited another passage in the judgment of Dyson LJ to illustrate in what circumstances a party could say that the he has reasonable belief of a strong case:-

“30. Some cases are clear-cut. A good example is where a party would have succeeded in an application for summary judgment … Other cases are more borderline. In truly borderline cases, the fact that a party refused to agree to ADR because he thought that he would win should be given little or no weight by the court when considering whether the refusal to agree to ADR was reasonable. Borderline cases are likely to be suitable for ADR unless there are significant countervailing factors which tip the scales the other way.”

Applying the above principle to the facts of the case, Deputy District Judge Tracy Chan did not agree with the Plaintiff that the liability of the Defendant for being the source of water leakage was a clear cut matter. The Court noted that the source of water leakage, which was not easy to locate, was very often a hotly argued issue at trial. The Court was not convinced that the Plaintiff had a good reason to refuse mediation.

For further information on mediation, please contact Ms. Natalia Cheung 

[(852)-6777 5767]

E-mail: natalia@plaw.hk

 

Natalia Cheung 

HKIAC Accredited Mediator & Hong Kong Solicitor

Pang Kung & Co., HK Solicitors & Notaries & Civil Celebrants of Marriages

 

Disclaimer: The above is for your information and reference only. The contents do not constitute legal advice or a substitute for legal advice in individual cases.