By Gabriella Chan
Hong Kong, 30 January 2023: Separation and divorce are, by nature, stressful. Couples who choose to go their separate ways inevitably have differences over matters such as children arrangements, assets, maintenance and numerous other personal issues to resolve.
In such circumstances, protracted court proceedings, with perceived taking of sides and associated costs, can exacerbate what is already a tense situation. But it doesn’t have to be this way. Mediation is a viable and attractive alternative, a proven process for helping couples reach an amicable and cost-effective settlement.
What is mediation? It is a process in which a specially trained, impartial third person – the mediator – seeks to help both sides communicate effectively and reach agreement on areas of dispute, all in a confidential setting.
A professional mediator is a great asset, first and foremost, simply because they remain neutral. They don’t work for either party. They facilitate an open and free exchange of information and help formulate ideas which will benefit everyone. Crucially, it is a voluntary and flexible process, so those involved need not feel coerced into an agreement and discussions can be scheduled to times which suit all sides.
In Hong Kong, the Judiciary is a firm supporter of mediation in general, including family matters. In fact, it has published a leaflet, “Family Mediation: Guide to Court Services”, which needs to be served together with the divorce petition and other documents in divorce proceedings in Hong Kong.
Previously, the Family Mediation Co-ordinator’s Office within the Family Court assisted couples to resolve their problems in a non-adversarial way. Since 2018, it has been succeeded by the Integrated Mediation Office (IMO), in Wanchai Tower, Harbour Road, which answers queries and provides information on court-related mediation in all civil cases, including matrimonial matters. The office also offers videos, booklets and other relevant materials.
In most cases, mediation is cheaper and faster than litigation. In 2021, the IMO referred a total of 233 civil cases to independent mediators. The success rate of completed cases was 68%. On average, a successful case took three months to conclude (from first appointing a mediator to settlement) with discussions lasting a total of 10 hours.
It is not absolutely necessary to be legally represented during mediation, though many parties do consult a lawyer to help them understand and prepare for the process. Some people also seek independent legal advice before reaching a final agreement. As a general rule, mediators – even if they are qualified lawyers – will not give legal advice to avoid conflict of interest.
It is also worth noting that certain family disputes – such as those involving allegations of child abuse or domestic violence – are not suitable for mediation.
Who are the mediators? They come from various professional backgrounds – including law and social welfare – and have undergone training to enhance their knowledge and skills in negotiation and dispute resolution. Various organisations in Hong Kong maintain lists of mediators. Since 2012, the Hong Kong Mediation Accreditation Association Limited has been the industry-leading body, overseeing accredited mediators and organising training courses to ensure services meet international standards.
As noted above, not all mediation cases are successfully resolved. In such instances, the parties may consider taking their case to court. However, it is worth pointing out that all discussions during mediation are privileged, meaning they cannot be referred to in future legal proceedings.
Mediation is just one way for people to avoid litigation; there are other options. Collaborative practice is a structured, voluntary process designed to assist couples towards a resolution of all issues. The key feature is that the couple and their lawyers sign a participation agreement pledging they will not go to court. Should they then do so, their lawyers involved in the collaborative process are barred from assisting further. This rule helps all parties commit to finding a solution.
Couples can also seek consensus via “without prejudice” meetings and correspondence between their legal representatives. Such out-of-court discussions, held with a view to finding a settlement, are considered strictly confidential and cannot be raised in court.
In summary, litigation should be the last resort for couples who are separating. Finding an alternative method to resolve matters allows people move forward rather than look back. Here at Boase Cohen & Collins, we have experienced Family Law solicitors ready to listen and assist.
Gabriella Chan is an Associate with BC&C. She focuses her practice on Family Law, being proficient in a wide range of matters arising from the matrimonial context, and is also active in the Hong Kong Family Law Association. She can be contacted at Gabriella@boasecohencollins.com.