Hong Kong Mediation: The Merits of Pre Mediation and Mediation Practices
- David Ravenscroft
- Sep 27, 2023
- 5 min read
Updated: 4 days ago
Author: David Ravenscroft, Senior Consultant
Hong Kong Mediation in Litigation and How the Practice Has Evolved
Mediation in litigation has evolved over the last decade, with facilitative and sometimes evaluative mediation styles being used. Pre-mediation meetings have become a significant trend, allowing mediators to understand the dispute, gauge the temperature and apply the most suitable mediation style.
Mediation has now been part of the litigation landscape in Hong Kong for over a decade. To avoid it becoming a ‘tick-box’ exercise, it may be helpful to remind ourselves of its benefits – for example, it avoids the expense and delay of litigation, preserves relationships and allows creative settlements which can draw upon matters outside the immediate dispute.
Whilst the basic model, namely facilitative mediation, remains unchanged, the conduct of mediation has developed under the influence of world-wide trends and the practical experience of all those who participate, whether as mediators, parties or their representatives.
Hong Kong Mediation Styles and Their Role in Dispute Resolution
The position of the mediator depends on the style of mediation
Facilitative mediation is where the mediator manages the relationship between the parties and the process of the mediation but allows the parties to make their own decisions as to the negotiation and settlement of the dispute. The mediator will be much more than a messenger between the parties. He will reality test the merits of the case and any possible settlement, but he will not seek to make a judgment as to the merits. Evaluative mediation, on the other hand, is when the mediator goes further than facilitating the agreement and actually provides an opinion as to the merits of the dispute or likely settlement.
Evaluative mediation has certainly been much discussed as one of those trends, but it is difficult to believe that in its purest form it is often practiced. How often has a mediator baldly given his verdict on who will win or lose a case, and how often has such an evaluation ever been accepted by the predicted loser?
If, however, evaluation is a concentration of minds of all the parties on the merits of the case and the dispelling of wishful thinking, then it has an important place in mediation. It should, however, be remembered that a single-minded focus on merits will mean less consideration of creative settlements.
Pre Mediation in Hong Kong: Gauging the Temperature and Setting the Strategy
One of the most important trends, and one enthusiastically endorsed by many mediators, is the practice of holding pre-mediation meetings. Such meetings which are held by the mediator with the parties separately, would normally be held at least one day before the mediation. Usually, this would be in an office environment but with the advent of Zoom there is no reason why it should not be held virtually. It is desirable for the party and his or her representative to participate but if the party is unavailable, it is still worth holding the meeting with just the representative.
Pre-mediation meetings have many advantages for both mediators and parties. For mediators, these meetings allow them to understand the background and context of the dispute, as well as the interests and expectations of each party. They also enable them to take the temperature of the dispute as it were, to assess which type or style of mediation would suit the case best, and to plan accordingly. For parties, these meetings allow them to express their views and concerns freely and confidentially to the mediator. They also help them to get familiar with the mediator and his or her role, and to feel more comfortable and confident about participating in the mediation.
Why a Single Mediation Style Is Rare in Hong Kong?
Most experienced mediators tend to agree that they should approach a mediation with an open mind and adopt a style or styles that suits the particular parties and the dispute. Mediators will usually move between different styles as the mediation develops. Few mediators describe themselves as simply ‘evaluative’ or ‘facilitative’, they will seek to provide whatever best suits the problem.
In conclusion, mediation is a dynamic and diverse field that offers many options for resolving disputes in a constructive and collaborative way. Facilitative and evaluative are by no means the only styles that may be employed. In a future article we can discuss the various styles of mediation and when they may be best employed.
Mediation at Ravenscroft & Schmierer | David Ravenscroft's Video
How Ravenscroft and Schmierer Can Support You in Hong Kong Mediation?
Cross border disputes require a strategic and commercially focused approach. At Ravenscroft and Schmierer, our team advises clients throughout the entire mediation process in Hong Kong, from early case assessment and preparation for pre mediation meetings to guidance on suitable mediation styles and negotiation strategy. We work with businesses, individuals and international parties who need practical, clear and experienced support in resolving disputes efficiently.
If you or your organisation is facing a dispute that may benefit from mediation in Hong Kong, our team is ready to help you understand your options and protect your interests.
Contact us today to discuss how we can support you.
FAQ: Hong Kong Mediation
How does Hong Kong mediation help resolve cross border disputes?
Hong Kong mediation provides a flexible and cost-effective method of resolving disputes and is well suited to international matters that require cooperation and creative settlement options.
What mediation styles are commonly used in Hong Kong for cross border disputes?
Facilitative mediation is the standard approach, while evaluative elements are sometimes used when parties need additional guidance on the merits.
Why are pre mediation meetings important in cross border disputes?
Pre mediation meetings help mediators understand the background, expectations and communication styles of international parties, which supports a more efficient mediation process.
Can Hong Kong mediators switch between facilitative and evaluative styles?
Yes. Most mediators shift their approach as the mediation progresses, especially when dealing with parties from different jurisdictions.
What advantages does mediation offer compared to litigation in cross border cases?
Mediation avoids the expense and delay of litigation and allows creative solutions that may go beyond strict legal remedies.
How does the mediator's style influence outcomes in cross border mediation?
The mediator's style influences how parties evaluate their positions and explore settlement options. A flexible approach is valuable when cultural or legal expectations differ.
Is evaluative mediation commonly used in Hong Kong for international disputes?
Pure evaluative mediation is rare, but evaluative techniques are sometimes applied to help parties understand the strengths and weaknesses of their positions.
Why is Hong Kong a strong venue for cross border mediation?
Hong Kong has a well-developed mediation culture, experienced mediators and a long-standing reputation as a regional dispute resolution hub.
Do parties benefit from discussing expectations in a pre-mediation meeting?
Yes. These meetings help clarify concerns, build rapport with the mediator and increase confidence, which is valuable when parties come from different backgrounds.
Can creative settlements be particularly useful in cross border disputes?
Yes. Mediation allows flexible and commercially focused solutions that are not limited to the legal positions of the parties.
How does Hong Kong mediation help preserve international business relationships?
Mediation encourages cooperation and confidentiality, which helps maintain professional relationships that may continue after the dispute.
Are virtual pre mediation meetings effective for international parties?
Yes. Virtual meetings allow parties to prepare effectively without the need for travel and can be especially convenient for cross border disputes.
Do mediators often switch styles in a cross-border dispute?
Yes. Skilled mediators adjust their style frequently based on the needs, expectations and communication preferences of the parties.
Disclaimer: Whilst every effort has been made to ensure the accuracy of this article, it is general in nature and does not constitute legal advice of any kind. You should seek your own personal legal advice before taking legal action. We accept no liability whatsoever for loss arising out of the use or misuse of this article.
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