Mandatory mediation in Hong Kong: a workable solution based on Australian experiences

Abstract

It seems that with government’s guidance on mediation procedures—mediation obviously increased once parties are obliged to engage in mediation—statistics from other jurisdictions reveal that the parties not only resolved their dispute but they would also use mediation again. The Australian courts successfully use mandatory mediation in various courts and jurisdictions, state and federal. Hong Kong’s mediation system does not include mandatory mediation, although it has been discussed many times and it has been decided it might be preferable to introduce such a system at a later stage. Practice Direction 31, however, seems to be an indirect form of mandatory mediation. In addition to that, Hong Kong courts now tend to show a more reluctant approach in declaring mediation clauses invalid if those appear to be uncertain and unclear in order to indirectly mandate parties to mediate. The objective of this research paper is to explore and analyse whether mandatory mediation could be a workable solution for Hong Kong considering the current mediation development and situation. Further, the paper identifies whether mandatory, by way of court-annexed, mediation is generally suitable for Hong Kong by comparing Australia’s state and federal jurisdictions that already applied court-annexed mediation. It could be argued that a court-annexed mediation pilot project for Hong Kong is advisable in order to experience a mandatory mediation approach and by providing statistics at the end of such a project.