Revisiting the issue of enforceability of mediation agreements in Hong Kong

Abstract

Currently, there is no statutory framework governing the enforceability of mediation agreements and case law on this matter has been inconsistent. While the traditional reluctance to enforce mediation agreements still prevails, judges and commentators are increasingly acknowledging the fact that mediation agreements are enforceable if the terms of the agreements are certain. This issue is particularly relevant considering the rapid development of mediation in Hong Kong and the introduction of the forthcoming Mediation Ordinance. This paper suggests that at the current stage, it is not appropriate to impose statutory provisions on this issue which should be a matter for judges to decide based on the facts of each case, applying contract law principles. This paper will also consider the Civil Justice Reform in Hong Kong and discuss the possible effects of the reform with particular focus on the enforceability of mediation agreements.