To implement the recommendations of the Working Group on Mediation headed by the Secretary for Justice, and following public consultation, the Mediation Ordinance was enacted in June 2012 and came into operation on 1 January 2013. The Mediation Ordinance provides a regulatory framework for the conduct of mediation in Hong Kong without hampering the flexibility of the mediation process.
The objects of the Mediation Ordinance are to promote, encourage and facilitate the resolution of disputes by mediation, and to protect the confidential nature of mediation communications (section 3).
For the purposes of the Mediation Ordinance, mediation is a structured process comprising one or more sessions in which one or more impartial individuals, without adjudicating a dispute or any aspect of it, assist the parties to a dispute to do any or all of the following including identifying the issues in dispute, exploring and generating options, communicating with one another and reaching an agreement regarding the resolution of the whole, or part, of the dispute (section 4).
Please click here to read the text of the Mediation Ordinance.
After two rounds of public consultation in 2015 and 2016 (see consultation documents here), the Government introduced the Apology Bill into the Legislative Council in January 2017. The Apology Ordinance (Cap. 631) was enacted in July 2017 and came into operation on 1 December 2017.
The objective of the Apology Ordinance is to promote and encourage the making of apologies with a view to preventing the escalation of disputes and facilitating their amicable resolution.
For the purposes of the Apology Ordinance, an apology made by a person in connection with a matter means an expression of the person’s regret, sympathy or benevolence in connection with the matter, and includes an expression that the person is sorry about the matter. An apology may be oral, written or by conduct and includes any part of the expression that is an express or implied admission of that person’s fault or liability in connection with the matter or a statement of fact in connection with the matter (section 4).
The Apology Ordinance also provides that in most civil proceedings an apology does not constitute an express or implied admission of fault or liability and must not be taken into account in determining fault, liability or any other issue to the prejudice of the apology maker (section 7). Furthermore, an apology is generally not admissible as evidence for determining fault, liability or any other issue to the prejudice of the apology maker (section 8).
The Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Ordinance 2017 (Amendment Ordinance) was enacted on 14 June 2017 to clarify that third party funding of arbitration, mediation and related proceedings is permitted under Hong Kong law by amending the Arbitration Ordinance (Cap. 609) and the Mediation Ordinance (Cap. 620).
The proposed amendments were based on the recommendations made in the Report on Third Party Funding for Arbitration published by the Law Reform Commission of Hong Kong in October 2016 and the views of the Steering Committee on Mediation chaired by the Secretary for Justice. The Amendment Ordinance came into operation upon gazettal on June 23, 2017, except for section 3 which relate to the Arbitration Ordinance (New Arbitration Ordinance Provisions) and section 4 relating to the Mediation Ordinance (New Mediation Ordinance Provisions).
The Department of Justice launched a two-month public consultation on a draft code of practice on third party funding of arbitration and mediation on August 30, 2018. After due consideration of the comments received in the consultation, the Secretary for Justice, as the authorised body appointed under the Arbitration Ordinance, has decided to issue the Code of Practice for Third Party Funding of Arbitration and to appoint 1 February 2019 as the commencement date of the New Arbitration Ordinance Provisions.
The commencement of the New Mediation Ordinance Provisions will be deferred to a future date following further consultation with the mediation community and relevant stakeholders on certain issues concerning third party funding of mediation with a view to addressing them.
