10/15/2010 4:44:30 AM EST
Not Entirely Legal - Part 28
Education; mediation; working group; civil court procedure; options; fees; bad name; procedural changes; negotiation
Posted by Malcolm Merry

Education, education, mediation

In modern government, if you want something done, you appoint a committee to make recommendations. Of course you don’t have to call it a committee. In fact it is better if you can think of another title for the body so as to make them seem more important. To call it a board bestows more gravitas.

If you want to make the committee sound especially important, you can call it a commission or a council or even a cabinet. If you want to make it sound permanent, you can call it a standing committee. If you want to make sure that it does not decide anything, you can call it a consultative committee. And if you want to make it sound really vigorous, you can call it a working party or (if you think that sounds like something to do with prisons) a working group.

Such was the importance and urgency of mediation that they chose the last option. The Chief Justice’s Working Party on Mediation was asked to roll up its sleeves and come up with recommendations for promoting mediation. The Secretary for Justice was similarly enthused and came up with a working group containing several of the worthies who were already in the party plus several more workers.

The party was all for cost sanctions if a litigant refuses to mediate. The group wanted to ensure that all law students are educated about mediation. Make it a compulsory, stand alone course in the law degree, they suggested.

If only it were that simple. The courses at the universities are packed already: which well-established subject is to be scrapped to make room? Since it’s all new, who is going to design the course and where will you find the teachers with the requisite experience? Being run by universities, there are tedious procedures that have to be followed before a course is introduced.

Moreover, to teach a practical, procedural matter such as mediation on its own and as an abstraction is to make it sterile and uninteresting. Mediations always have content and purpose. They are best taught as problems to be solved by practice and role play.

As a preliminary the working group might have asked the university departments if the group’s idea was feasible. If it had, it would have discovered that in the Postgraduate Certificate in Laws at HKU there was already an optional course in commercial mediation and a pretty popular one, too: none of that boring law stuff, just some fun negotiation within a business context.

As it happens, the workers need not have worried about educating mediators. There has been a spate of How to Be a Mediator courses ready to convert lawyers into something socially useful, for a handsome fee. There have even been a few courses on How to Be a Lawyer in Mediation. Then we got mediation as part of civil court procedure last April, along with the unspecified cost sanctions. The Bar amended its code of conduct to oblige members to advise clients of the possibility of attempting to resolve their dispute by mediation. It all seemed to be going swimmingly.

Concert Parties

But now, we are told, the working party is concerned: according to “various sources” some mediations have been conducted not in a genuine effort to resolve disputes but as concerted efforts to avoid potential cost penalties. It seems that clients are being advised that the court will raise the question of mediation and that they will have simply to agree and then go through the motions. Sometimes the two sides have even co-operated in the charade so as mutually to avoid adverse cost consequences.

It gets worse. Mediators apparently have been approached by solicitors proposing to appoint them with a limited remit or on a package deal as part of going through the motions of attempting a mediated settlement. So injury is added to insult – no genuine love of mediation and no real work, or fees, for mediators.

The judiciary, we are informed, is deeply concerned that this is all contrary to the promotion of mediation as part of civil justice reform and will give mediation a bad name. But it seems to me that this concern has things the wrong way around. The charade is not contrary to the promotion of mediation as part of the reforms, it is the consequence of the promotion of mediation as part of the reforms; and it is the way that the promotion has been carried out, with unwarranted claims for the efficacy and universality of mediation and threats of unspecified costs sanctions for not trying it, that is giving mediation a bad name.

The answer, if I may say so, is to lay off the propaganda and to drop the huffing and puffing about costs. The threats of sanctions are contrary to the spirit of mediation which is supposed to be a voluntary search for an agreed solution to a dispute. You are unlikely to reach such a solution if one or both sides feel they have been forced into the negotiations. Moreover, nobody has yet been able to explain convincingly how this costs business works. One has the uneasy feeling that it was not thought through or may even be a bluff.

But I must confess to a sneaking admiration for the ingenuity which these dreadful abuses reveal. There can be no surprise, except perhaps among members of the working party, that litigation lawyers have divised ways of resisting the undermining of their practice and livelihood from the procedural changes, nor that lawyers have done so whilst seeming to go along with the changes. But to circumvent a procedure aimed at negotiation and agreement with your opponents by negotiating and agreeing with your opponents to co-operate in appearing to go along with it, well that takes a certain chutzpah.


Malcolm Merry is Associate Professor of Law at the University of Hong Kong and a Hong Kong barrister. He is the author of Hong Kong Tenancy Law (5th ed, LexisNexis 2010) and co-author (with Paul Kent) of Building Management in Hong Kong (2nd ed, LexisNexis 2008).

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Last Post: 10/15/2010 7:29:03 PM
Subject: Not Entirely Legal - Part 28
Date Posted: 10/15/2010 7:29:03 PM

Medical Negligence Solicitors The initiative taken for the concern is very serious and need an attention of every one.

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