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(d)
Proposal 66: Mediation as condition of legal aid
The proposal was that in cases judged by the Legal Aid Department to be suitable for
mediation, the legal aid certificate should in the first place be limited to funding the
mediation, with court proceedings to be funded thereafter if the mediation fails.
In
such cases, mediation could be viewed as a condition for the grant of full legal aid,
and the proposal was so presented in the Interim Report. This was perhaps an
unfortunate way of formulating the option since the proposal is more accurately seen
as one for legal aid funding to be made available for mediation both as a likely means
of achieving a satisfactory resolution of the parties' dispute and of saving public
resources.
The main objection raised by several respondents, no doubt influenced by the way in
which the option was put in the Interim Report, was that a rule making mediation a
condition of legal aid was discriminatory against the poorer litigant.
In their response, the Legal Aid Department, while acknowledging the value of ADR
as an alternative or adjunct to legal proceedings, considered it undesirable that the
Director should be given power to make participation in ADR a condition of granting
legal aid "as this may not be consistent with access to justice". Noting that the Interim
Report had only cited family disputes as a possible area for mediation, in an
information paper delivered to the Legco Panel on Administration of Justice and Legal
Services in June 2003, the Administration stated that it would study the findings and
the final evaluation of the Judiciary's Family Pilot Mediation Scheme and await the
Working Party's finalized report in considering the proposal's implications on legal
aid services. The Administration also indicated that it would not rule out the need to
run a trial scheme in respect of legal aid cases before considering the way forward.
Notes
Interim Report §652. The proposal outlined above is clearly preferable to the alternative of making
an unfunded mediation a pre-condition of legal aid funding.
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