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Mediate First : To Resolve Disputes, To Mediate | Mediation Week 2014

The Use of Mediation in Different Sectors


Nine sectors, including Community, Commercial, Construction, Family, Financial, Education, Insurance, Legal Profession and Medical Profession have been identified as our target sectors to further promote the wider use of mediation during the Mediation Week.


Promotion of Mediation in Various Sectors

Community

The disputes among owners of private buildings and various stakeholders, in particular the issues related to building management (BM) and building maintenance/refurbishment have been increasing significantly in recent years. Some of the disputes may have arisen due to misunderstanding or different interpretation of the Ordinance by the parties concerned. The Home Affairs Department (HAD) has always been encouraging the disputed parties to resolve their disputes by mediation. Mediation is an effective tool to resolve disputes, not only to maintain harmonious relationship between the parties, but also to minimise the lengthy court litigation process. HAD staff would make every effort to assist in mediation and would refer the more complicated BM dispute cases to professional mediation bodies for follow-up actions, if necessary.
   

Commercial

A "Mediate First" Pledge campaign was first launched in 2009. The "Mediate First" Pledge (the Pledge) is a statement of policy aimed at encouraging greater use of mediation as a flexible, creative and constructive approach in resolving commercial disputes. In the absence of dispute resolution provision in the contract, the Pledge articulates the intent of the disputants to resolve conflicts in amicable and constructive ways that produce mutually-determined resolutions while controlling risks, expenditures and time consumed. Companies and trade organizations can rely on their adherence to the Pledge as a policy favouring appropriate use of interest-based negotiation and mediation. In 2013, another "Mediate First" Pledge reception was organised to further promote the use of mediation by trade and other organizations and associations. So far, 160 organisations and associations have pledged to first consider the use of mediation to resolve disputes before resorting to court litigation. The Public Education and Publicity Sub-committee of the Steering Committee on Mediation will continue its efforts to encourage more organisations to sign the "Mediate First" pledge.

The International Chamber of Commerce (ICC) offers a wide array of dispute resolution services specifically intended for international commerce and cross-border transactions. Foremost among these is ICC arbitration, administered by the ICC International Court of Arbitration and ICC mediation, administered by the ICC International Centre for ADR ("Centre").

The Centre also administers other dispute resolution proceedings, such as expertise and dispute boards. The Centre works with parties to establish a holistic dispute resolution solution that meets the parties' specific interests.

On 1 January 2014, the ICC Mediation Rules entered into force and replaced the ICC ADR Rules that have been used for amicable dispute resolution worldwide since 2001. The new Mediation Rules have been adapted to help parties resolve even the most complex cross-border disputes quickly and reliably.

Since 2001, the ICC International Centre for ADR has mediated cases worldwide involving more than 70 nationalities. Over 75% of the cases transferred to the mediator concluded with a settlement.

In addition, the Centre organizes the annual ICC Mediation Week in Paris, France which encompasses ICC’s biggest educational event, the International Commercial Mediation Competition. The Centre also organises other mediation related events worldwide, including the annual ICC International Mediation Conference for in-house counsel. For more information, please visit www.iccadr.org
   

Construction

Construction Industry Council (CIC) promotes mediation within the construction sector actively by publishing various publications, such as Guidelines and newsletters, as well as organising seminars for raising the awareness of mediation among the construction practitioners.

CIC also co-organised construction conference with the Inter-Pacific Bar Association on 24 January 2014 with a view to promoting dispute avoidance and dispute resolution in Hong Kong. The conference was well attended by over 160 delegates.
   

Family

Family mediation has taken its roots in Hong Kong for over 10 years.

The Family Mediator assists the separating or divorcing couples to resolve various issues regarding the children of the family, the matrimonial home, and the family’s finances in an amicable and cost effective manner.

The Hong Kong Family Welfare Society (“ HKFWS”), the Hong Kong Catholic Marriage Advisory Council (“HKCMAC”), Caritas Hong Kong, the Law Society of Hong Kong and the HKIAC have provided family mediation service to the general public, and have worked closely with the Family Mediation co-ordinator of the Judiciary to pro-actively reaching out to the couples who are in need of the mediation service and related legal advice.
   

Financial

Established in November 2011 as a non-profit making company limited by guarantee, Financial Dispute Resolution Centre (FDRC) is a leading financial mediation service provider in Hong Kong. It administers an accessible, efficient and transparent Financial Dispute Resolution Scheme (FDRS) whereby independent and impartial mediators will provide mediation services to resolve monetary disputes between individual consumers and financial institutions.

The setting up of FDRC is in line with the requirements of Principle 9 of the G20 High-level Principles on Financial Consumer Protection.
Principle 9 on Complaints Handling and Redress includes:

  1. Consumers to have access to adequate complaints handling and redress mechanisms that are accessible, affordable, independent, fair, accountable, timely and efficient.
  2. Not to impose unreasonable cost, delays or burdens on consumers.
FDRC's Guiding Principles of Independence, Impartiality, Accessibility, Efficiency and Transparency are also in line with the requirements of Principle 9.

The FDRC will continue to strive for the best quality services for the HK community by providing a cost-effective and time-saving financial dispute resolution avenue for the financial sector and the public. With the services provided, Hong Kong will continue to excel in its status as an international financial centre.
   

Education

Hong Kong Family Welfare Society, in collaboration with Hong Kong Institute of Mediation and The Hong Kong Mediation Council’s General Interest Group, will organize free mediation talks for 30 primary and secondary schools and 2 mediation workshops for principals and teachers during the Mediation Week.

With the theme “managing conflicts, planting the seeds of peace” (化解爭議、播種和平), mediators of the three organisations will provide school-based talks for students to introduce to them what mediation is and how it can be applied in conflict resolution. The mediation talks will be arranged according to the schedule of individual schools.

The two mediation workshops for principals and teachers "Mediation in managing workplace conflicts and complaint handling" will be conducted by Ms Amarantha Yip, Head of Service of Hong Kong Family Welfare Society, Mr. Roy Cheng, Director of Hong Kong Institute of Mediation and Ms Jody Sin, Vice Chairperson of The Hong Kong Mediation Council. The three speakers will focus on how mediation knowledge and skills can be applied to prevent and resolve relevant disputes in the school setting with case illustration and role play exercise.

Registration to these programmes is on a first-come-first-serve basis
   

Insurance

In an effort to encourage the use of mediation in the insurance sector, in 2006 Hong Kong Federation of Insurers (HKFI) provided funding of HK$250,000 to Hong Kong Mediation Council to set up a Pilot Scheme for encouraging disputing parties to settle disputes by mediation in work related personal injury claims.

The Scheme was first launched in 2007 and had successfully resolved 34 dispute cases before its completion in 2011. Positive feedback was received from the relevant insurers and injured workers. A wrap-up ceremony for the Scheme, officiated by the then Secretary for Labour and Welfare, was held in November 2011.

From 2006 onwards, HKFI had organised a number of seminars/training courses for its Members with a view to promoting the use of mediation in resolving insurance claims disputes. Two briefing sessions were also conducted in 2007 for members of the Association of the Right of Industrial Accident Victims which later actively referred cases to the Pilot Scheme.

In May 2009, HKFI signed the ‘Mediation First’ Pledge to show its firm commitment to promote mediation to its Members and encourage them to first explore the use of mediation to resolve disputes before pursuing other alternative dispute resolution process or court litigation.
   

Legal Profession

Practice Direction 31 (Mediation) issued by the Hong Kong Judiciary encourages parties to consider mediation as an alternative dispute resolution method to minimize expense, time, uncertainty and anxiety likely associated with litigation.

The Law Society fully recognises the benefits of mediation and strongly believes that solicitors who act as mediation advocates and solicitor mediators do play an important role in the development of mediation in Hong Kong. To enhance the standard of mediators, the Law Society takes the lead in setting the best practice of the mediation profession and the accreditation standards of mediators. Moreover, the Law Society offers a diverse range of mediation services for solicitors and the general public.

Mediator Nomination Scheme:

The Law Society maintains two panels of accredited mediators, namely the Panel of Accredited General Mediators and the Panel of Accredited Family Mediators. A list of mediators on these two Panels is available on the website of the Law Society.

Training:

To enable solicitors to update their mediation skills, the Law Society routinely provides a diverse range of training programmes on mediation and alternative dispute resolution methods.

Promotion of Mediation:

The Law Society provides public enquiry services on mediation and mediation-related matters by telephone and email.

Advising on Policy and Guidelines on Mediation:

The Law Society actively contributes to public debates on issues relating to mediation and participates in relevant discussions through representation on various bodies and committees in the area of mediation.
   

Medical Profession

Complaints and claims are inevitable in modern healthcare, because of rising expectations from clients, complex processes and procedures, unexpected adverse outcomes and most importantly miscommunication. Application of mediation skills such as active listening, empathy, perception check, paraphrasing, summarising, acknowledging of emotions, reframing and finding common grounds and interests can help to resolve much conflicts in restoring trust and rapport between the clients and the healthcare professionals.

In the event of a serious adverse event, adversarial litigation channels delay resolution and result in win-lose situation. Mediation process in the pre-action provides an alternative channel for dispute resolution and may better restore a broken relationship. To achieve this, the medicial profession is considering the setting up of mediation schemes for serious medical disputes, and enhancing education among the medical profession and medical indemnity sector on the utilisation of mediation mechanism. At the same time, efforts will be made to promote public awareness on such schemes and their effectiveness.