To implement the recommendations of the Working Group on Mediation headed by the Secretary for Justice, and following public consultation, the Mediation Ordinance was enacted in June 2012 and came into operation on 1 January 2013. The Mediation Ordinance provides a regulatory framework for the conduct of mediation in Hong Kong without hampering the flexibility of the mediation process.
The objects of the Mediation Ordinance are to promote, encourage and facilitate the resolution of disputes by mediation, and to protect the confidential nature of mediation communications (section 3).
For the purposes of the Mediation Ordinance, mediation is a structured process comprising one or more sessions in which one or more impartial individuals, without adjudicating a dispute or any aspect of it, assist the parties to a dispute to do any or all of the following including identifying the issues in dispute, exploring and generating options, communicating with one another and reaching an agreement regarding the resolution of the whole, or part, of the dispute (section 4).
Please click here to read the text of the Mediation Ordinance.
After two rounds of public consultation in 2015 and 2016 (see consultation documents here), the Government introduced the Apology Bill into the Legislative Council in January 2017. The Apology Ordinance (Cap. 631) was enacted in July 2017 and came into operation on 1 December 2017.
The objective of the Apology Ordinance is to promote and encourage the making of apologies with a view to preventing the escalation of disputes and facilitating their amicable resolution.
For the purposes of the Apology Ordinance, an apology made by a person in connection with a matter means an expression of the person’s regret, sympathy or benevolence in connection with the matter, and includes an expression that the person is sorry about the matter. An apology may be oral, written or by conduct and includes any part of the expression that is an express or implied admission of that person’s fault or liability in connection with the matter or a statement of fact in connection with the matter (section 4).
The Apology Ordinance also provides that in most civil proceedings an apology does not constitute an express or implied admission of fault or liability and must not be taken into account in determining fault, liability or any other issue to the prejudice of the apology maker (section 7). Furthermore, an apology is generally not admissible as evidence for determining fault, liability or any other issue to the prejudice of the apology maker (section 8).
The Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Ordinance 2017 (“Amendment Ordinance”) was enacted on 14 June 2017 to clarify that third party funding of arbitration, mediation and related proceedings is permitted under Hong Kong law by amending the Arbitration Ordinance (Cap. 609) and the Mediation Ordinance (Cap. 620).
The proposed amendments were based on the recommendations made in the Report on Third Party Funding for Arbitration published by the Law Reform Commission of Hong Kong in October 2016 and the views of the Steering Committee on Mediation chaired by the Secretary for Justice. The Amendment Ordinance came into operation upon gazettal on June 23, 2017, except for section 3 which relate to the Arbitration Ordinance (New Arbitration Ordinance Provisions) and section 4 relating to the Mediation Ordinance (New Mediation Ordinance Provisions).
The Department of Justice launched a two-month public consultation on a draft code of practice on third party funding of arbitration and mediation on August 30, 2018. After due consideration of the comments received in the consultation, the Secretary for Justice, as the authorised body appointed under the Arbitration Ordinance, has decided to issue the Code of Practice for Third Party Funding of Arbitration and to appoint 1 February 2019 as the commencement date of the New Arbitration Ordinance Provisions.
The commencement of the New Mediation Ordinance Provisions will be deferred to a future date following further consultation with the mediation community and relevant stakeholders on certain issues concerning third party funding of mediation with a view to addressing them.
To further foster the development of mediation in Hong Kong, the Secretary for Justice has set up a Steering Committee on Mediation (“Steering Committee”) in 2012, comprising members from different sectors of the community to advise on and assist in the further promotion and development of mediation in and of Hong Kong. Please click here for the Terms of Reference and Membership of the Steering Committee.
Recent developments in relation to the work in promoting mediation by the Steering Committee include the setting up of the West Kowloon Mediation Centre as well as the social media platforms for promotion of mediation services. With a view to assisting the users who wishes to disclose or use mediation communication for research, evaluation or educational purposes to comply with section 8(2)(e) of the Mediation Ordinance, in 2016 the Steering Committee compiled the Guidelines for Disclosure of Mediation Communications for Research, Evaluation or Educational Purposes for reference purposes.
Prior to the setting up of the Steering Committee, the mapping out of plans for the development of mediation in Hong Kong was undertaken by the Working Group on Mediation set up in 2008 and the Mediation Task Force set up in 2010.
With the recommendation in the Report of the Working Group and the submissions received in the public consultation, and with the support of the Task Force, it was considered that the establishment of a non-statutory industry-led single accreditation body would be desirable and should be supported. The single accreditation body could assist in ensuring the quality of mediators, consistency of standards, education of the public about mediation and mediators, enhancing public confidence in mediation services, and maintaining the credibility of mediation.
As there are a number of mediation service providers in Hong Kong, local and overseas alike, it is important for the major service providers to work together on the formation of an accreditation body and to agree on mutually acceptable professional standards, including training standards.
To this end, Hong Kong Mediation Accreditation Association Limited was incorporated in the form of a company limited by guarantee on 28 August 2012 with the Hong Kong Bar Association, the Law Society of Hong Kong, the Hong Kong International Arbitration Centre, and the Hong Kong Mediation Centre as the founder members.
Hong Kong, being a legal services hub in the Asia-Pacific region, is home to many prominent law-related organisations on mediation. Please visit the Hong Kong Legal Hub website for more information.
A “Mediate First” Pledge campaign was launched in May 2009 to encourage the use of mediation as the first step to resolve disputes. The “Mediate First” Pledge (“the Pledge”) is a non-legally binding commitment by pledgees to first explore the use of mediation to resolve disputes before resorting to other means of dispute resolution, such as court litigation. Over 840 companies, organisations/associations and individuals have signed the pledge:
“Mediate First” Pledge for Companies/ Organisations/ Associations/ Individuals (online form)
Information about the “Mediate First” Pledge Logo & Star Logo Competition for Secondary School Students and the list of winners can be found here.
The first award presentation of Star Logo and Star Logo certificates to eligible MFP pledgees was held at the “Mediate First” Pledge Event 2019. The Event also marked the launch of three dedicated social media platforms, namely, Facebook, LinkedIn and Weibo, to connect directly with the public in promoting, among others, the Department of Justice’s mediation initiatives. Please click on the banners below for the latest news on the biennial “Mediate First” Pledge event and “Mediate First” Pledge Star Logo Award Scheme.
An investment Agreement was signed on 28 June 2017 under the framework of the Mainland and Hong Kong Closer Economic Partnership Arrangement (“CEPA”) between the HKSAR Government and the Ministry of Commerce (“CEPA Investment Agreement”) providing for promotion and protection of investments between the two places. The CEPA Investment Agreement provides a Mediation Mechanism for Investment Disputes for settlement of an investment dispute arising from an alleged breach of the substantive obligations of the Agreement by one side causing loss to an investor of the other side.
Under the Mediation Mechanism for Investment Disputes, Hong Kong and the Mainland respectively designated their own mediation institutions and mediators for the resolution of investment disputes and published the list of mediation institutions and mediators mutually agreed by both sides. The mutually agreed lists of mediation institutions and mediators of both sides were published on 14 December 2018.
With regard to mediators designated for Hong Kong, they are subject to a set of eligibility criteria which, among other things, requires them to possess necessary professional knowledge of international or cross-border trade and investment or relevant legal knowledge. The Department of Justice has also drafted a set of mediation rules for adoption by designated mediation institutions and mediators of the HKSAR.
The Mediation Mechanism for Investment Disputes will help advance the wider use of mediation in resolving cross-border disputes.
The Department of Justice has co-organised the Investment Law and Investor-State Mediator Training Course (“Training Course”), the first investment law-cum-investment mediation training course in Asia, together with the International Centre for Settlement of Investment Disputes and the Asian Academy of International Law, in October 2018.
With the conclusion of the investment agreement under the framework of the CEPA on 28 June 2017, which provides mediation as a means of dispute resolution, the Training Course is one of the Department of Justice's initiatives towards developing Hong Kong into an international investment law and international investment dispute resolution skills training base. The goal is to build up a team of investment mediators in Asia to handle international investment disputes. The week-long training course attracted enthusiastic responses. Some 50 participants from around the world, including government officials from Mainland China, ASEAN countries, the Middle East, Africa, South America and Hong Kong, as well as local and overseas legal and mediation practitioners, gathered for this Asia premiere of intellectual and professional exchange in these subject areas.
The Training Course was held for the second time in October to November 2019 and, again, positive response was received. The investment law training of the 3rd Training Course was successfully held on 4 October 2021 by virtual means with over 200 participants from various jurisdictions, while the investor-State mediator training of the 3rd Training Course were conducted online on 11 – 14 March 2022, and well received by over 40 participants from 15 jurisdictions.
The 4th Training Course will be organised by the Department of Justice, tentatively scheduled in Q1/2 2024.
The West Kowloon Mediation Centre (“WKMC”), a unique facility dedicated to mediation, had its opening on 8 November 2018 with a Pilot Mediation Scheme (“Pilot Scheme”) launched at the same time. The significant project marked the Government's commitment to promote the use of mediation and to enhance public awareness of its benefits. The Pilot Scheme was operated at the WKMC by the Joint Mediation Helpline Office, an independent co-ordinator appointed by the Government, to provide mediation services to litigants of Small Claims Tribunal (“SCT”) cases that are suitable for mediation and other suitable cases. The Pilot Scheme was a great success with around 50 percent of cases settled after mediation. It ended on 30 June 2022.
To facilitate the greater use of mediation services for dispute settlement, a new centre named the Integrated Mediation Office (West Kowloon) (“IMO(WK)”) of the Judiciary has commenced operation on 5 July 2022 at the premises of the WKMC. The IMO(WK) is an extension of the Judiciary’s existing Integrated Mediation Office at the Wanchai Law Court Building for facilitating the greater use of mediation services primarily for cases in the SCT. Adjudicators of the SCT will identify suitable cases for referral to the IMO(WK) for mediation services to be arranged free of charge.
The ICC International Commercial Mediation Competition - Hong Kong was first co-organised by the Department of Justice with the International Chambers of Commerce – Hong Kong in October 2018. It was a mediation competition focusing on mediation advocacy skills in international commercial mediation opened to both local and overseas university students. Professional mediators were invited to serve as voluntary judges or mediators in the competition. The winning team was sponsored to participate in the ICC International Commercial Mediation Competition in Paris. This served as an excellent opportunity to educate Hong Kong’s next generation on the benefits of mediation as well as raising Hong Kong’s status as the leading centre for international legal and dispute resolution services in the Asia-Pacific Region.
The 2nd Competition was held virtually in November 2020. 20 university teams spanning across 16 time zones from 9 jurisdictions competed against each other in 37 matches. The winning team further competed virtually at the 16th ICC Mediation Competition in early February 2021.
The Department of Justice will continue to co-organise this competition.
At the 2nd Guangdong-Hong Kong-Macao Bay Area Legal Departments Joint Conference in 2020, the working proposal of the Greater Bay Area Mediation Platform was endorsed. The Greater Bay Area Mediation Platform is an authoritative platform for high-level exchange and cooperation among the legal departments of the three governments, discharging the role of a standard-setting body with a view to promoting the wider use of mediation within the Greater Bay Area. The Greater Bay Area Mediation Platform explores the promulgation of a set of unified qualification, accreditation and other relevant standards for mediators in the Greater Bay Area, and facilitates the establishment of a local panel of qualified Greater Bay Area mediators in each of the three places. It also studies the formulation of best practices for mediation rules applicable to cross-border disputes and best practices for mediators’ code of conduct. These standards and best practices can enhance the confidence of the public to use mediation in the Greater Bay Area, which will facilitate qualified Greater Bay Area mediators to provide mediation services and promote the use of mediation in the Greater Bay Area.
The Greater Bay Area Mediator Accreditation Standards and the Greater Bay Area Mediator Code of Conduct Best Practice were endorsed by the 3rd Guangdong-Hong Kong-Macao Bay Area Legal Departments Joint Conference on 10 December 2021 and came into effect on 30 December 2021 (please see the hyperlinks below).
The Greater Bay Area Cross-boundary Disputes Mediation Model Rules were endorsed by the 4th Guangdong-Hong Kong-Macao Bay Area Legal Departments Joint Conference on 16 December 2022 and came into effect on 30 December 2022 (please see the hyperlink below).