Mediation in Hong Kong

Mediation in Hong Kong SAR by Shahla F. Ali &  A. K. C. Koo, both of the University of Hong Kong

According to this article, the Hong Kong Mediation Ordinance came into force on 1 January 2013. "It aims to provide a regulatory framework for promoting the use of mediation as a dispute resolution process and protecting the confidential nature of mediation communications... it prohibits disclosure or admissibility of mediation communications unless in exceptional circumstances or with leave of the court."

"At present, Hong Kong has not adopted legislation based on the Model Law on International Commercial Conciliation of the United Nations Commission on International Trade Law (the ‘Model Law’). Its adoption seems unlikely"

Lack of Confidentiality in Settlement Negotiation

The Dirty Little Secret of Legal Negotiation: Confidentiality Under Federal Rule 408 and Related State Laws by Missouri Law Professor Richard C. Reuben.

The abstract:

There is a widely held belief that legal negotiations are confidential in that communications made during those discussions may not be introduced in subsequent legal proceedings. However, this first major analysis of the primary vehicle responsible for providing this protection – Federal Rule 408 and related state laws – demonstrates how this is no longer true. Rather, relatively few legal negotiations today are covered by the rules, and the federal and state courts have carved out significant exceptions that render the rule a virtual nullity. This is especially problematic modern legal negotiation emphasizes significant disclosure of sensitive information. This article explains how we got to this point, and offers a theoretical framework for regulating alternative dispute resolution processes like legal negotiation that ultimately resolves the problem by shifting the Rule 408 categorical analysis to a simple two-part test: whether the settlement discussion evidence is necessary to prevent undue hardship, and whether it is otherwise unavailable. While current Rule 408 analysis generally leads to the admission of legal negotiation evidence, the proposed analysis provides a principled and pragmatic approach for balancing the fundamental tension between the confidentiality needs of legal negotiation the information needs of public adjudication.

Private Information in Settlement Bargaining Models

Revelation and Suppression of Private Information in Settlement Bargaining Models, by Vanderbilt Professors Andrew F. Daughety & Jennifer F. Reinganum.

The abstract:
"We discuss the implications of various models of settlement negotiations for the revelation or suppression of private information held by the parties. This information may be relevant to multiple audiences, including those involved in the instant lawsuit; other potential litigants that may subsequently make use of the information in their own suits against one of the parties; and more distant observers and users of the legal process. We also examine how rules of evidence and rules of civil procedure can sometimes result in different degrees of purposeful or (arguably) unintended information suppression."

Confidentiality in Mediation

"Protecting Confidential Information in Commercial Mediations" 

is a new article by Paul Lurie and Sharon Press.

Despite the Uniform Mediation Act, "there is no uniformity in the United States as to how or when information disclosed in mediation may be used or protected from use in subsequent legal proceedings. This confusion about the protection of information may discourage parties in commercial disputes from using mediation. For those parties who decide to enter mediation, the Model Standards of Conduct for Mediators make the mediator responsible for promoting understanding “of the extent to which the parties will maintain confidentiality of information they obtain in a mediation.”"

This article includes a suggested mediation confidentiality clause that can be used in agreements to mediate commercial disputes.

Written Position Statements in Mediation

Parties and counsel can write position statements before mediation.  These can be given confidentially to the mediator only, or can be shared with the other side of the dispute.  Tips and pros and cons of various approaches to position statements in mediation are provided here by Cullen and Dykman.

Court Orders Party to Pay Due to its (Bad Faith?) Participation in Mediation

If a party required to participate in mediation does not do so in a way the court approves, can the court order that party to pay?  This question raises several big issues.  First, what source of law or agreement required the party to participate in mediation?  Did that legal requirement specify what exactly the party must do in mediation? E.g., just show up? Participate constructively?  Make generous offers?  Then if that party allegedly breaches that duty (according to the mediator or opposing party) will the confidentiality of mediation prevent that allegation from reaching the judge?   And if the judge does hear that allegation and concludes it has merit, what remedy will the court order?

These important and interesting issues are posed by a recent Ontario case in which a court ordered a party (an insurer) to pay due to its "sham" participation in mediation.  An excellent analysis by Canadian mediator Rick Weiler is here.  Mr. Weiler writes "Mediation is all about party self-determination. If an insurer, compelled to attend mediation, has decided for whatever reason that it doesn’t wish to settle the case (at least at the numbers being demanded by the plaintiff) should its conduct at the mediation attract cost sanctions? I think not."