Discusses the common law protection afforded to mediation negotiations by the without prejudice rule, legal professional privilege and the mediation agreement signed by all parties prior to the commencement of the mediation process. Examines the inclusion of admissions within the without prejudice rule, and the exceptions to the rule. Notes two pieces of legislation offering protection, namely the US Uniform Mediation Act 2001 and Directive 2008/52. Argues that the limited protection in the UK provides a case for the introduction of legislation on mediation privilege. ; postprint
Abstract: One of the underlying objectives of the reformed civil justice system in Hong Kong is to facilitate the settlement of disputes. The court is now under the duty of active case management to encourage and promote the use of an alternative dispute resolution procedure where appropriate. Facilitative mediation was generally practised in Hong Kong before the Civil Justice Reform. By issuing a specific practice direction on mediation, the judiciary has given a strong boost for this process to the extent that parties may even be penalized in costs if they unreasonably refuse to mediate. The continuous transfer of conflict resolution from the hands of the judge to the parties gives rise to an increasing risk that information disclosed in mediation may be used to the parties' disadvantage in subsequent legal proceedings. This paper examines the precise scope of three common law principles that protect confidentiality of mediation communications. Drawing upon the approaches of local institutions, the US Uniform Mediation Act and the EU Mediation Directive, it considers the arguments that might be relevant in deciding what law should govern the issues at present not covered by the existing legal framework, a question that has become more pressing in view of the fact that negotiations have begun on a proposed mediation ordinance to deal with it. ; published_or_final_version
Mediator immunity has been identified as one major issue for possible future mediation legislation in the 2010 Consultation Paper released by the Hong Kong Government. So far there is no uniform stance on the issue around the world. This paper analyses relevant methods for determining mediator liability and the scope of that liability in different countries. Hong Kong's revised Arbitration Ordinance has taken a forward through its qualified immunity position with respect to the issue of mediator liability under the arbitration framework. This position is commendable for adapting to the current trend of dispute resolution. The paper concludes that a similar approach should be adopted in future mediation legislation in Hong Kong. ; published_or_final_version
