Mediation: Pull & Push Factors

In any relationships, tension like lack of trust is inevitable. The common goal between disputants is to resolve any disagreement, the more interactive the communication process, the better. And all actors in different stages of the the process have their respective roles to play.

If there is already an on-going court proceeding in Hong Kong, the disputants, their legal representatives and the Court have a shared duty to help resolve the dispute upfront rather than to litigate it later. The true and real willingness for the disputants to attempt mediation to resolve their dispute is crucial. Their legal representatives follow the Court's practice direction and have to explain to their respective clients about the availability of mediation, the respective cost structure for mediation and litigation.

Where a disputant unreasonably fails to engage in mediation, the Court has a discretion to make an adverse costs order against the disputant. Unless there is a reasonable explanation, the disputant may be required to pay the costs, (including fees, disbursements, expenses and remuneration) even if the disputant succeeds at trial.

To perceive settlement negotiations as tantamount to mediation is wrong as mediation is facilitated negotiation conducted by an impartial neutral. Furthermore, the Court would not accept retaliatory uncooperative attitude as a reasonable explanation for not engaging in mediation. While effectiveness and efficiency are mediation's pull factors, the shared duties of actors in the process push all to manage their relationships better!