The Development of Legal Protection for Mediation Confidentiality in Hong Kong

One of the underlying objectives of the reformed civil justice system in Hong Kong is to facilitate the settlement of disputes. The court is now under the duty of active case management to encourage and promote the use of an alternative dispute resolution procedure where appropriate. Facilitative mediation was generally practised in Hong Kong before the Civil Justice Reform. By issuing a specific practice direction on mediation, the judiciary has given a strong boost for this process to the extent that parties may even be penalized in costs if they unreasonably refuse to mediate. The continuous transfer of conflict resolution from the hands of the judge to the parties gives rise to an increasing risk that information disclosed in mediation may be used to the parties' disadvantage in subsequent legal proceedings. This paper examines the precise scope of three common law principles that protect confidentiality of mediation communications. Drawing upon the approaches of local institutions, the US Uniform Mediation Act and the EU Mediation Directive, it considers the arguments that might be relevant in deciding what law should govern the issues at present not covered by the existing legal framework, a question that has become more pressing in view of the fact that negotiations have begun on a proposed mediation ordinance to deal with it.