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Five broad concerns or objections emerged, namely, that :-
(a)
the imposition of any requirement to engage in mediation
as a condition of
being allowed to proceed with litigation is inconsistent with the right of access
to the courts guaranteed by BL 35 and so is unconstitutional ("the constitutional
argument");
(b)
the court should perform its duty to hear cases in the usual way and should not
direct or encourage parties to go elsewhere to resolve their dispute ("the duty to
entertain litigation point");
(c)
Hong Kong does not have the necessary infrastructure to adopt a court-annexed
ADR or mediation scheme ("the lack of infrastructure point");
(d)
mediation must, by its nature, be voluntary and mandatory schemes are
inherently likely to fail ("the voluntariness objection"); and,
(e)
such schemes are likely often to be counter-productive in that mediation which
fails adds to the costs and delays ("the additional costs point").
Additionally, two specific objections (which can be dealt with in the discussion of the
proposals concerned) emerged, namely :-
(a)
that Proposal 66 is objectionable since it is discriminatory against poorer
litigants who have to rely on legal aid;
and,
(b)
that Proposal 67 suffers from the defect that no workable method of deciding
whether a party has acted unreasonably or uncooperatively exists, and
moreover, that any attempt to examine why a mediation or other ADR process
failed, would impair the confidentiality and without prejudice nature of such
processes essential to their success.
Notes
Some respondents extended this argument to include any rule imposing costs penalties for
unreasonably rejecting mediation.
Proposal 66 was also said to be workable only where both sides are legally-aided since otherwise,
the legally-aided person, though willing to go to mediation, could not force the other party to agree.
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