Alternative Dispute Resolution
Apart from representing clients as advocates in mediations, barristers in Hong Kong also provide services as mediators in several of disputes.
Mediation is a way of resolving disputes through a confidential and voluntary process, with the assistance of a mediator. One of the underlying objectives of the new High Court and District Court rules (the new rules are also applicable to Lands Tribunal and Family Court with modifications) which came into effect on 2 April 2009 is to facilitate settlement of disputes. The post-CJR rules place a duty on the court to further the underlying objectives by actively managing cases. Such case management includes, where appropriate, encouraging the parties to use procedures alternative to litigation to resolve their dispute. The most common alternative dispute resolution procedure is mediation.
A barrister may act as a mediator who serves as a neutral third party to help parties settle their disputes through the process of mediation. The mediator only helps plan and execute a process facilitating the parties in dispute to discuss, understand and make attempts to settle their disagreement. The mediator however has no power to impose a settlement on the parties yet.
A barrister may also act as a legal representative to his client in the course of mediation. With expertise in advocacy, he helps identify the issues and his client's concerns, interests, and desires. He also alerts his clients his legal rights, explores what could be the worst, best and possible outcomes. This will allow the client to have a more accurate and realistic account of the strengths and weaknesses of his/her case and to ensure thorough preparation ahead of the mediation.
Mediation has proven to be successful in resolving various types of disputes, it is also a method of dispute resolution which saves time and costs and also helps preserve harmonious relationship between parties.
For the Hong Kong Mediation Code, please click here.
