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K21.6. Choosing among and implementing the alternatives
| 673. | It should also be stressed that in implementing any scheme involving some degree of compulsion on the parties to resort to ADR, the court (assuming it has a discretion in the matter) must be guided by the best interests of the parties. As discussed above, some cases are unsuitable for ADR and are unlikely to benefit from a reference by the court. In such cases, it would be unacceptable for the court to refer a case to ADR to suit the interests, say, of the court's diary, rather than the parties' interests. |
| 674. | In general, if the court is to compel or encourage parties to resort to ADR, it must be able to do so without making the parties feel that they are being pressurised to settle on unjust terms or that the court lacks interest in their case and cannot be bothered to deal with it, or that, in pressing for ADR, the judge has indicated a lack of impartiality and a view in favour of one side or the other. |
| 675. | Subject to such caveats, a choice among the various options depends on the available infrastructure, funding and considerations of legal policy. Unless a body of appropriately trained and reliably neutral mediators or other ADR practitioners exists, there would be little point in the court contemplating a reference to ADR. The cost of the mediation or other ADR processes must also be such as to make them a practical option. It must be borne in mind that if the parties attempt ADR unsuccessfully, the cost of that attempt is likely to become a cost additional to their other litigation costs. |
| 676. | Further investigation into ADR resources available in Hong Kong is therefore needed. It is likely that mediation would be most in demand in any court-annexed scheme so that more mediators, with particular specialisations, must be trained and an appropriate organizational and accreditation system approved by the court. The known resources would however indicate that at least the foundations of a viable court-annexed ADR system are already in place. |
| 676.1 | As noted above, the Pilot Scheme has been well received and is serviced by about 50 trained family mediators who come from the NGOs, private practice and the government. |
| 676.2 | The HKIAC has been building up experience in mediation. In June 1992, it began administering the Hong Kong Government Airport Core programme's compulsory mediation system applicable to many of the contracts let for the construction and establishment of the airport at Chek Lap Kok. |
| 676.3 | In January 1994, the HKIAC established a division now known as the Hong Kong Mediation Council ("HKMC"). As at 5 May 2001, its membership was reported to total 491 with 220 mediators interested in construction mediation, 207 in commercial mediation, 137 in family mediation and 81 in community mediation. HKMC's mediation activities are reportedly primarily in the spheres of construction industry and family disputes. |
| 676.4 | The HKMC has so far conducted three 40 hour accredited general training courses for mediators which were attended by a total of 74 participants. It also provides accreditation through the HKIAC's Accreditation Committee, a total of 160 mediators presently having been accredited (81 general, 79 family). |
| 677 | An important question concerns funding, and in particular whether an ADR system can be made available for the smaller cases, especially those with unrepresented litigants, on a financially viable basis. In the United States, court-annexed systems initially drew heavily on the pro bono services of attorneys in private practice. For example, many schemes existed where such attorneys joined a roster agreeing to give a stated number of hours of their time each year for free to provide unrepresented litigants with early neutral evaluations of their cases. Many of such schemes are court-annexed and participation has often been regarded as part of a lawyer's ethical duty. |
| 678. | Pro bono mediation services, with an element of government organisational subvention, may be particularly cost-effective and may yield a better return than, for example, pro bono schemes for giving unrepresented litigants legal advice on their cases or general "do-it-yourself" instructions for fighting their cases in court. If the system is successful and if the process is seen to be capable of effecting real savings in costs, it often becomes possible to introduce a fee at a realistic level to make the scheme financially more sustainable. (Note 588) |
Notes
| 588 | Brown and Marriott discuss such developments in the United States: B&M §5-013 to §5-032. <back> |
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