Legal update: Divorce is not the only option: Some key facts about mediation23Oct2014
Mediation followed by consent court applications is becoming an increasingly popular way for spouses to part ways amicably. With marital breakdown becoming a growing trend in Hong Kong there is greater need for individuals in legally binding relationships to be aware of their options.
Mediation involves a trained matrimonial negotiator helping the parties reach arrangements suitable for their particular circumstances dealing with their children, their money and the future. We have two experienced mediators on our team: Ian De Witt is accredited by the Hong Kong International Arbitration Centre, and Mark Side by CEDR.
This article answers some commonly asked questions about mediation. The following information can also be found on the CEDR website. For any queries please contact MarkSide@tannerdewitt.com
What is Mediation?
“Mediation is a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution”
- Mediation is an inexpensive and more efficient way to resolve disputes. It allows people involved in conflict to talk freely and openly in a confidential environment
- Mediation is informal and allows parties to have their say
- Mediation is held in private and you can choose your mediator.
- Mediation is voluntary, but refusal to mediate can give rise to cost sanctions in court proceedings.
- Courts actively encourage parties to consider mediation.
- Parties can mediate at any stage before or during proceedings.
- Mediation is confidential and ‘without prejudice’ (nothing said in the mediation is admissible as evidence in legal proceedings).
- Any settlement reached is legally binding once put into writing and signed by the parties.
Mediation has a number of advantages over litigation and arbitration processes:
- Successful – over 70 to 80 per cent of cases referred to CEDR settle.
- Quick – most mediation cases can be arranged within a short time frame and the actual formal mediation session usually lasts for one or two days only.
- Cost effective – compared with litigation and arbitration processes, mediation is a less expensive way to resolve disputes.
- Gives parties control over the process and the outcome.
- Mediation can run alongside litigation or arbitration or you may wish to put the litigation or arbitration process ‘on hold’ while you mediate.
- Mediation can maintain business relationships far more effectively than adversarial processes.
- A wide variety of settlement options can be achieved in mediation not just monetary settlements.
- Informal and flexible – the process is designed to suit the needs of the parties.
What is a mediator?
A mediator is a neutral person with no personal interest in the outcome, who helps and facilitates the parties to reach a voluntary agreement. The mediator is basically a skilled person who helps the parties talk so that the parties can better understand the problems and reach a solution.
What will the mediator do?
The mediator will manage the process for the parties, to assist them in talking to each other, to help them better understand the problems and reach a solution that meets their needs. The mediator will assist in trying to create an environment that allows for discussion and then negotiation. The mediator is trained to manage the process and help the parties overcome problems like “deadlock” or miscommunication.
When to Mediate?
Tanner De Witt and CEDR suggest that the time to mediate is when the parties have sufficient information to reach a practical settlement of the dispute and before unnecessary expenditure is incurred in legal fees or damage is done to the parties’ commercial interests.
Is mediation voluntary?
Yes. The parties themselves can decide if they want to try to settle their dispute in this manner. The parties choose the mediator. No one can or will impose a settlement on the parties in mediation.
What kinds of disputes can be mediated?
In CEDR’s and Tanner De Witt’s experience, most kinds of disputes are suitable for mediation. However if there has been violence, intimidation or control that makes it impossible for one party to be able to make an informed and voluntary decision, and if the mediator decides that nothing can be done to modify the mediation process to make it fair for all of the parties, mediation cannot take place. In some disputes a judicial precedent is needed and therefore the matter needs to be resolved by a judge or jury.
When can a dispute go to mediation?
Anytime – even after a trial has commenced. However, it is better to have your dispute go to mediation as soon as you know that you have a dispute and before a court case is started. Not only will it be less expensive, but it may be easier to reach a mutually satisfactory agreement.
Who decides the final outcome in mediation?
The parties decide the final outcome and terms of any settlement. The mediator has no authority or power to make a decision for the parties. If all of the parties do not agree, there is no resolution of the dispute.
What is the difference between mediation and arbitration?
In mediation, the parties themselves decide the terms of settlement and the final outcome. In arbitration, after hearing the evidence, the arbitrator decides the outcome of the dispute.
Is mediation binding on the parties?
Yes – once an acceptable agreement has been reached by the parties. But until an agreement has been reached, the mediation is not binding and any party is free to stop or terminate the mediation process at any time.
What does confidentiality mean in mediation?
It means everyone attending mediation, including legal counsel, is bound by confidentiality. “New” information learned during mediation cannot be used in court unless that information is included in the written agreement. Because of the confidential nature of the process, the mediator will destroy all their notes taken during the mediation session.
Do the parties to mediation need lawyers?
No. You are not obliged to have a lawyer but lawyers can play a very important part in mediation, so at the very least parties should consider seeking legal advice before signing any agreement. Many lawyers are skilled at working with their clients at mediation, so it can be much easier to finalize an agreement. Legal fees of going to mediation are usually much lower than the costs of going to arbitration or the courts.
Can my lawyer assist me in the mediation?
Yes you and your lawyer can speak privately at any point during the mediation. Your lawyer will also remain with you in private sessions with the mediator although sometimes the mediator will wish to speak with parties and their lawyers separately to assist the process. Your lawyer is available to discuss legal issues and offer guidance on the negotiation process. Often the lawyers will be asked by the parties to make the initial address during the opening first session when everyone is together.
Does the mediator need to be a lawyer or expert in the dispute subject matter?
Not in CEDR’s view. It is the mediator, and not his or her profession or professional experience that is most important. The mediator needs to be someone who has the necessary training and skills to be an effective mediator.
If the mediator is a lawyer, do the parties still need their own lawyers?
Yes. The mediator who is also a lawyer does not provide legal advice to the parties.
Is the mediation held in complete privacy?
Yes. The only persons present are the parties, the mediator and whoever else is necessary to attend as agreed upon before the mediation.
Is everything that is said during mediation confidential?
With some rare exceptions, the answer is yes. Parties to mediation agree that what is said during mediation will be “off the record” and will not be used by one against the other in any later proceedings at arbitration or in the court. However of course, if something is disclosed during mediation that the mediator is required by law to disclose, – for example, child abuse – that part of the discussion will not be kept confidential.
If there is a limitation period involved in the dispute, does mediation suspend the time running?
No. Therefore, it is wise to take whatever steps are necessary to protect your future legal rights. The person to speak to about limitation periods is your lawyer, and not the mediator or CEDR Asia Pacific.
How long will the mediation process take?
Most commercial mediations will require one day plus a short period for the mediator to prepare and read the mediation documents. Shorter mediations can be arranged if the complexity of the dispute/or amount in dispute allows it.
Where does mediation take place?
Mediation can take place anywhere that the parties agree.
When are mediation sessions held?
At a time that is as convenient as circumstances allow to all of the parties.
How much does mediation cost?
It depends on how many hours the mediation takes, since most mediators charge an hourly rate. CEDR Asia Pacific will advise you of the cost of the mediation, once the mediator and time to be allocated to the mediation is confirmed by the case adviser, in consultation with the parties. Each party is still responsible for their own legal adviser’s legal fees. However the cost of mediation is usually much cheaper than the cost of going to court.
Why is mediation cheaper than going to court?
Because mediation is an informal and flexible process which takes less time than going to court. The documentation required for mediation should be much less than what is needed if the dispute goes to court.
Why is mediation successful?
The mediator is a highly trained professional with the experience to guide the parties towards a new way of seeing the dispute. The mediation experience allows each party to be heard and if they choose to express feelings. Mediation gives the parties themselves the opportunity to create and control the resolutions to their dispute.
What if one of the parties is more powerful than the other?
In most situations, a skilled mediator can use any of several methods to level the playing field.
What happens if we do not settle at mediation?
Often those that do not settle on the day of the mediation do settle shortly after because parties have reassessed their position and decided settlement is still better than costly litigation or arbitration. If there is no settlement then parties are free to take whatever further course of action they believe is appropriate to resolve the dispute. Usually the parties will still have obtained a great deal from the mediation and it will have assisted in focusing the parties on what the key issues will be, if they still chose arbitration or the court.
Source: CEDR Asia Pacific