Hong Kong Mediation: Construction Law and Dispute Resolution

This report provides an overview of mediation in Hong Kong, particularly within the context of construction disputes. It examines the mediation process, including the rules and procedures followed, and highlights the role of the Hong Kong Mediation Centre (HKMC) in promoting and facilitating mediation services. The report discusses the legal authority underpinning mediation in Hong Kong, including the Hong Kong Mediation Ordinance, and explores the benefits of mediation as an alternative dispute resolution method, emphasizing its efficiency and cost-effectiveness compared to traditional litigation. The report also touches upon the historical development of mediation in Hong Kong and its increasing application in both construction and commercial disputes. The report references various sources like the Hong Kong Mediation Code, HKMC, and other relevant legal publications.

Running Head: Mediation in Hong Kong
Mediation in Hong Kong
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Mediation in Hong Kong
Table of Contents
About Mediation........................................................................................................................2
Mediation Rules.........................................................................................................................2
Mediation Process......................................................................................................................2
Hong Kong Mediation Centre....................................................................................................3
Legal Authority..........................................................................................................................5
Bibliography...............................................................................................................................6
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About Mediation
For settling construction disputes with the help of an ill-disposed methodology is viewed as
contrary to the support of an amicable connection between two gatherings. The innovative
assertion procedure may copy the suit continuing prompting postponement and monetary
heightening. In the time of the previous ten years, the government of Hong Kong has
actualized an intervention proviso as an elective way of solving of development debates. The
experience and knowledge into settling development debates by incorporating intercession
should be present. (Anon., 2019). The cutting edge present day intercession procedure and its
logical birthplaces are inspected. The deficiencies of current framework are highlighted. The
accomplishment of the settling presently rehearsed in United Kingdom may propose that
there is a spot for another mechanism of question goals, which might assist in developing the
circumstance. Whenever there is dispute coming out of contract or is related to the contract
should be first referred for mediation at Hong Kong International Arbitration Centre and
should follow the procedures mentioned in the latest rules (Anon., 2013). If the process of
mediation is left in between by the mediator or is comes to an end without reaching the
settlement then the issue can be referred for arbitration according to the Domestic Arbitration
Rules. Hong Kong Mediation Centre is a part of Hong Kong International Arbitration Centre.
Mediation Rules
Mediation is defined under mediation rules as confidential, voluntarily and private issue
settlement process in which the mediator who acts as a third person assists the parties to the
contract to come to the settlement (Anon., 2010).
Mediation Process
1. If issue arises then the party can seek the starting of mediation proceedings by jotted
down for mediation to opposite party.
2. The receiving party will agree for mediation and inform HKIAC within 14 days when
he/she receives the request. If the party does not reply within 14 days then it will be
assumed that the he has refused the mediation process.
3. If both parties agrees on the mediator then they will inform HKIAC and the process
will go according to the rules and if parties does not agree on mediation then HKIAC
will appoint the mediator for both the parties.
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Mediation in Hong Kong
4. The mediation shall commence after the appointment of mediator and should be
completed within 42 days (Anon., 2013).
HKSAR perceive that intervention is an adequacy contest settlement technique that can
improve the legal methods as the customary procedures of question goals are tends advance
into an over-burden arrange. In light of the World-wide experience has demonstrated that
intercession appreciates a settlement rate of about 80% and which contrasted with case,
intervention has demonstrated to be a quicker, more affordable, progressively private, and
increasingly agreeable approach to determine debates. The intervention was then is a decent
option in contrast to help the court weight. While Mediation has attracted various
assessments Hong Kong, some are persuaded that intentional take-up of solicitations to
participate in intercession isn't powerful and there must be sure level of legal impulse to
guarantee intervention will achieve. Then again, there are others accept that eagerness to
partake in intervention is basic to its prosperity and in this way the accentuation ought to be
set on help, instruction and support. All things considered, in light of the genuine utilization
of intercession and purposed to advance the purviews in accordance with the real nations of
the world; the system of intervention is created by the legislature and helped by the related
boards/associations (Chau, 2007).
Hong Kong Mediation Centre
Hong Kong Mediation Centre (HKMC) was set up in year 1999. It is one of its first non-
benefit organisation intervention establishments with beneficent role in Hong Kong and have
been resolved to advance intercession for over 10 years. As of now, there are nearly 800
General Accredited Mediators in HKMC. These are gathering of experts in different areas,
for example, Health Care, Education, Legal, Social Welfare, Industrial and Commercial,
Construction and Engineering, who are submitted in the advancement of intervention to
determine questions in Hong Kong (Anon., 2015). For as far back as years, HKMC has
effectively teamed up with more than 30 neighbourhood and abroad intervention and
discretion foundations to advance intercession everywhere throughout the globe which assists
improve the notoriety and universal status of Hong Kong in intercession. HKMC
predominantly focuses on advancement of intervention administrations, especially in network
intercession, to advance intercession in the network through instruction and attention. In
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Mediation in Hong Kong
addition, to cook for different needs of people in general, HKMC gives Cantonese and
English intervention (Anon., 2015).
When we talk about construction dispute, the latest scenario in Hong Kong is solving the
dispute through mediation. The process of mediation first took place in 1980s. It is neither
the duty nor responsibility of the mediator to give advice to parties of dispute or about the
result of the dispute. Rather, their role is mainly pointed on implementing the procedure of
mediation in proper and systematic system to support in achieving proper resolution of the
issue. The process of mediation could work better specially in construction industry in every
place. Generally, in construction work, the main aim of the workers is to finish the work as
soon as possible after knowing that there might be dispute arising out of it and at the same
time, they want to make sure that they are maintaining good work relationship. While
entering into the contract the parties to the construction work specifically mentions about the
dispute settlement clause through which they can solve the issue arising out of contract
(Anon., 2018).
HKMC is made out of Council, different Committees and Secretariat. The Council is mindful
to figure HKMC's approach, bearing and settle on significant choices. The Council comprises
of different boards of trustees and working gatherings, for example, Continuing Professional
Development and Member Services Committee, and Hong Kong China Mediation Expert
Committee and so on. Every board is responsible to the Council and aids usage of the
arrangement. The Secretariat is in charge of HKMC's day by day task the board, giving
guidance and help to Council, executing Council's goals and planning crafted by all
Committees. The possibility of the proposed intervention/mediation and after that discretion
system is talked about with specific reference to the development business in Hong Kong.
Apart from the fact that the Construction question have utilized intercession as a settlement
strategy since 1985 and begin created in Hong Kong since mid-1980's, the use of intervention
presently in Hong Kong is still generally restricted. In this way, the legislature of Hong Kong
is intended to cause intervention to turn out to be all the more successfully and widely
connected in both development and business questions (Kumaraswamy & Soo, 2010).
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Legal Authority
On 15 June 2012, the Hong Kong Mediation Ordinance was given assent and was enforced
on 1 January 2013. The Ordinance is applicable when intervention is led in any event halfway
in Hong Kong or in line with a composed consent to intercede which alludes to law of Hong
Kong or Ordinance itself. It means to give an administrative system to advancing the
utilization of intervention as a contest goals process and securing the private idea of
intercession interchanges. It characterizes 'intervention' as a facilitative procedure wherein at
least one neutrals help disputants to distinguish the issues in contest, investigate and create
alternatives, speak with each other, or potentially achieve a settlement understanding with
regards to the entire or part of the question. Further, it denies divulgence or suitability of
intercession interchanges except if in excellent conditions or with leave of the court.
Bibliography
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Anon., 2010. Report of The Working Group On Mediation, Hong Kong: s.n.
Anon., 2013. General Mediation. [Online]
Available at: http://www.hkmaal.org.hk/en/GeneralMediation.php
[Accessed 26 June 2019].
Anon., 2013. Hong Kong Mediation Code. [Online]
Available at: http://www.hkmaal.org.hk/en/HongKongMediationCode.php
[Accessed 26 June 2019].
Anon., 2015. About Us. [Online]
Available at: http://mediationcentre.org.hk/en/aboutus/HistoryAndDevelopment.php
[Accessed 26 June 2019].
Anon., 2015. Mission and Values. [Online]
Available at: http://mediationcentre.org.hk/en/aboutus/MissionAndValues.php
[Accessed 26 June 2019].
Anon., 2018. Mediation. [Online]
Available at: https://www.doj.gov.hk/eng/public/mediation.html
[Accessed 26 June 2019].
Anon., 2019. What Is Mediation And How Does It Work?. [Online]
Available at: https://corporate.findlaw.com/litigation-disputes/what-is-mediation-and-how-
does-it-work.html
[Accessed 26 June 2019].
Anon., n.d. Hong Kong International Arbitration Centre. [Online]
Available at: https://globalarbitrationreview.com/organization/1000900/hong-kong-
international-arbitration-centre
[Accessed 26 June 2019].
Chau, K., 2007. Insight into resolving construction disputes by mediation/adjudication in
Hong Kong. Journal of Professional Issues in Engineering Education and Practice, 133(2),
pp. 143-147.
Kumaraswamy, M. & Soo, G., 2010. Mediation—Past, Present, and Prospects: Hong Kong
Perspective. Journal of Legal Affairs and Dispute Resolution in Engineering and
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Construction, 2(4).
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