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Hong Kong Court of Final Appeal "Practice Directive 31 Mediation" (2014)
- Time of issue:2015-02-16 08:00
Hong Kong Court of Final Appeal "Practice Directive 31 Mediation" (2014)
(Summary description)Part A 1. One of the basic goals of the Rules of the High Court and the Rules of the District Court is to facilitate the parties in the legal proceedings to reach a settlement of their disputes. One of the areas in which the court promotes active case management is to take up the responsibility to achieve the above objectives, encourage all parties to adopt alternative resolution procedures, and provide convenience for the relevant procedures (hereinafter referred to as "relevant duties"). ). The court has the responsibility to assist the parties in reconciling the case, and the parties and their legal representatives are also responsible for assisting the court in performing related duties . 2. The purpose of this practical instruction is to assist the court in performing relevant duties. This practice instruction applies to all
- Categories:Laws And Regulations
- Time of issue:2015-02-16 08:00
1. One of the basic goals of the Rules of the High Court and the Rules of the District Court is to facilitate the parties in the legal process to reach a settlement of their disputes. One of the areas in which the court promotes active case management is to shoulder the responsibility to achieve the above objectives, encourage all parties to adopt alternative resolution procedures when it deems appropriate, and provide convenience for the relevant procedures (hereinafter referred to as “related responsibilities) ”). The court has the responsibility to assist the parties in reconciling the case, and the parties and their legal representatives are also responsible for assisting the court in fulfilling relevant duties[1 ].
2. The purpose of this practice instruction is to assist the court in performing its duties. This practice instruction applies to all civil proceedings in the Court of First Instance of the High Court and the District Court by writs[2 ], but listed in Annex A is an exception.
3. An alternative resolution procedure refers to a process in which the parties agree to appoint a third party to assist them in reconciling the case or resolving the dispute. Reconciliation negotiations between the parties are not equivalent to alternative settlement procedures. Mediation is a common alternative resolution procedure. This practice instruction applies to mediation procedures. Where the parties are conducting arbitration procedures, the relevant court procedures will be shelved, and this practice instruction will not apply to such procedures.
4. When the court exercises its discretion to determine costs, it will consider all relevant circumstances, including the fact that the litigant did not have a reasonable explanation but did not participate in mediation based on data acceptable to the court. Legal representatives must advise their clients so that they understand that the court may issue unfavorable costs orders against parties who have not participated in mediation without a reasonable explanation.
5. In the following circumstances, the court will not issue a cost order against the litigant on the grounds that the litigant did not have a reasonable explanation but did not participate in mediation:
(1) The litigant has participated in mediation and reached the minimum level of participation previously agreed by the parties, or reached the minimum level of participation indicated by the court in accordance with paragraph 13 of this practice instruction before mediation degree.
(2) The litigant has reasonable reasons to explain why he did not participate in mediation. If the parties have started active settlement negotiations and made progress without prejudice to their rights, this is likely to be one of the reasonable explanations; but once the negotiations break down, this explanation will no longer be valid and the parties must turn to the case. Whether it is appropriate to mediate. If the parties have actively carried out other forms of alternative resolution procedures in order to settle the dispute, this can also be a reasonable explanation for why they did not participate in mediation.
6. In all circumstances, including handling matters arising from the provisions of this Practice Directive and exercising its discretion to determine costs, the court shall not compel the parties to disclose any legal principles As for information protected by the right of confidentiality, such as data that enjoys the right of legal professional confidentiality, and data protected by communication privileges that do not compromise rights, the courts cannot accept such information as evidence. What happens during the mediation process is a communication that does not compromise rights and is also protected by the right to confidentiality. It must be emphasized here that the court will never weaken the protection provided by the right of confidentiality.
7. Part B below applies to legal procedures in which all parties are represented by lawyers, and Part C applies to legal procedures in which at least one of the parties is not represented by a lawyer.
8. This part is applicable to all parties Legal procedures represented by lawyers.
(1) Mediation certificate
9. Where all parties in the legal proceedings are represented by lawyers, the lawyers acting on behalf of the parties will, in accordance with Order 25, Rule 1, put the "questionnaire for setting a timetable" When submitting to the court for filing, the "mediation certificate" must be filed. “Conciliation Certificate” must use Attachment B to write in the format and fill in the required data, which can be modified if necessary, and the lawyer And the parties it represents signed for the facts.
(2) Mediation notice and response letter
10. If any party in the legal process (ie the “applicant”) intends to attempt mediation, after saving the “mediation certificate”, it should be as soon as practicable Serve the "Notice of Mediation" on the other party or other parties in the dispute (ie, the "Respondent"). “Mediation Notice” must use Attachment C to write in the format and fill in the required data, change it if necessary, and apply Signed by the person or his lawyer.
11. After the respondent receives the “Mediation Notice”, within 14 days (or within other time limits agreed by the parties or within the time limit specified by the court) to“ Mediation response form” to respond. “Mediation Response Form” must use Attachment D to write in the format and fill in the required data, if necessary, it can be modified, and the reply Signed by the person or his lawyer.
12. If the parties’ suggestions in the “mediation notice” and “mediation response letter” are different, they should try as soon as possible within the scope of practicable Discuss the differences of the various proposals to reach a consensus. The consensus reached after discussion should be recorded in writing and signed by the applicant and the respondent (or their lawyers) on the "mediation record" for verification.
13. In the event that the parties fail to reach a consensus on some of the mediation recommendations in the "Notice of Mediation" and the "Response to Mediation":< /span>
(1) If the parties are willing to be instructed by the court on how to resolve their differences, they can file a joint application and ask the court to give instructions to resolve each other’s differences; and
(2) Otherwise, either party can apply to the court for instructions, and the court can also resolve the parties in the“mediation notice "and" mediation response letter" and give appropriate instructions, but only in relation to the time limit in paragraph 11 above, as well as the relevant notice and response letter in paragraphs 4, 5, 6 and 7 Give instructions on the matters mentioned .
14. If the parties areWhere "mediation record" is reached, the parties shall act in accordance with the rules and timetable prescribed in the mediation agreement, and may apply to the court to suspend legal proceedings when appropriate.
15. “When the mediation notice” or “mediation response letter” is served to the other party, it must be sent to the court for filing at the same time. "Mediation records" must be submitted to the court for filing within 3 days after being signed by both parties or their representatives. The court may refer to these documents when determining costs.
(3) Applying to shelve legal proceedings for mediation
16. The court may, upon the application of at least one party or voluntarily exercise its power, shelve the relevant legal procedures or part of the procedures for the parties to mediate. The time limit and terms for the suspension of the procedures are determined by the court as appropriate, but the court must take care to avoid disturbing the progress indicator date and delaying the trial date; unless there are special circumstances, the trial date should not be adjourned.
17. During the court’s shelving of legal proceedings, if the case reaches a settlement, the plaintiff must immediately notify the court, and all parties should take the necessary steps to formally end the legal proceedings.
18. This section applies to legal procedures in which at least one party is not represented by a lawyer.
19. The court may exercise its powers at the request of one party or on its own initiative, depending on all circumstances, and consider whether the case is suitable for mediation at an appropriate time. The court may therefore require all parties to provide data, but it will certainly respect the confidentiality of the data.
20. When the court considers that the case is suitable for mediation, the court may instruct the parties to follow the procedures listed in Part B above, and may make necessary changes to the relevant procedures.
21. This practice instruction replaces the previous
22. This practice instruction will be
Date: August 14, 2014
Chief Judge of the Court of Final Appeal
 Refer to page
These procedures include legal procedures carried out by originating summons , And subsequently ordered by the court to proceed as if the case or matter was initiated by a writ. See rule 8 of Order 28.
paragraph 13(2) aims to facilitate mediation, Resolve the technical and detailed differences in the mediation process for all parties who have agreed to try mediation by means of the instructions given by the court. Unless both parties are willing to let the court resolve their differences, one of the parties may not submit an application, requesting the court to instruct the other party to participate in mediation, or requesting the court to appoint a mediator regardless of the opposition of the other party. See paragraph 13(1).
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