Man evolved in order to resolve human conflicts.
In the old days, we resolved conflicts by either power or coercion. When humans were more civilized, laws were developed to define and protect their rights as individuals against infringement by other people. Nowadays, too many people only insist on their perceived rights and this is why a lot of negotiations on a dispute settlement end in deadlock. As a result, theories and skills relating to “mediation調解” were explored about 30 years.
Professor Roger D. Fisher was one of such experts and I was glad to have had the opportunity of being his student when I attended the mediation course at Harvard University in the 1990s and was amazed by his unusual energy.
What is mediation? It is a facilitative intervention process by a third party i.e. the mediator in a dispute in order to get the parties to voluntarily reach a settlement in a win-win situation.
In Hong Kong, the long history is that people used to go to court for the determination of disputes. In the 1990s, Hong Kong was preparing herself for the sovereignty handover from the British back to China. Some businessmen cast doubts about the judicial system and proposed to set up an arbitration (仲裁) centre in Hong Kong. In any event, arbitration was already a world trend. Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to a “private judge” who can make a binding decision on the dispute. In 1985, the Hong Kong International Arbitration Centre (香港國際仲裁中心) was established and a judge Mr Neil Kaplan who used to be a barrister was asked to head the operation.
In the late 1980s, I became a member of the Chartered Institute of Arbitrators (英國特許仲裁師公會). The institute set up a Hong Kong branch that we belonged to. In 1996, a great step by us towards independence was to establish our own professional body. The local arbitrators joined together and established the Hong Kong Institute of Arbitrators(香港仲裁師協會). I was a member and then a committee member thereof. Given the sensitivity of the nature of the 2 arbitration institutes, the relationship between the foreign and local organisation was a kind of competition and yet cooperation, as some of their memberships overlapped. All boats nevertheless could rise on a rising sea.
In some ways, arbitration is however still akin to a court process. You employ a “private judge” and the parties will submit pleadings and submissions to the arbitrator, and have to exchange formal letters, documents and evidence. Witness interviews are also required. There is no appellate option. Some members of the public look at arbitration as an expensive and complicated procedure to resolve disputes. Court proceedings can often be cheaper.
The alternative option of “mediation” became attractive in the western world in the 1990s. Its benefits were many: being informal and confidential, saving of time and costs, short-duration meetings, and the parties could talk freely without any concern on the outcome because the ultimate settlement was not imposed by the mediator. It was a consensual agreement reached by the negotiating parties.
During those days, the only “professional” mediation body was an interest group headed by an arbitrator under the Hong Kong International Arbitration Centre. In the early 1990s, there was no formal mediation training available in Hong Kong. Some practised mediations without any qualifications. I flew to Harvard University to attend a course to learn the skills. Later, the Centre invited some Australian trainers to come to Hong Kong to provide learning courses.
In 1999, Raymond Leung, Helene Yuen and I, all specializing in ADR (alternative dispute resolution), valiantly decided to found an independent local mediation organisation.
It was called Hong Kong Mediation Centre (香港和解中心),the first such body in Hong Kong . We believed that mediation could be a better dispute resolution than court proceedings or arbitration. Mediation was informal, inexpensive, and not simply related to legal points. They should benefit the general public tremendously.
The top level of Hong Kong International Arbitration Centre was apparently not comfortable and one of the leaders Teresa Cheng came to talk to us. She explained that it was desirable for mediators, in order to be of good quality, should also be arbitrators. She was also worried that the set up of Hong Kong Mediation Centre would imply the supply of plentiful mediators in Hong Kong and that might affect the use of arbitration in Hong Kong. We expounded that arbitration was too expensive and complicated for a man in the street. He did not understand the twists and turns of the process, and would have to instruct a lawyer to handle. But, for mediation, he could simply walk into a conference room with the opposite party to talk to a mediator freely. Such negotiations would be based on the consideration of mutual interests rather than pure legal intricacies. Any settlement of a dispute was also subject to his consent and he could control the outcome of his problem. When we set up the Centre, there were already about 50 mediators in Hong Kong and the poor number was insufficient to serve a population of 7 million. We told Teresa that we were determined to navigate large stretches of rough water and produce more mediators in Hong Kong, but arbitration would not lose its dominance for any reason. To fortify the existence of the Mediation Centre, another founder Sylvia Siu, Raymond & I provided almost one million Hong Kong dollars to the running expenses thereof.
Given Hong Kong having more and more court cases, litigation costs being more and more expensive and society being more and more adapted to new ideas, the government and people were finally realizing the importance of having mediation as a dispute resolution mechanism to be availed in our community. Some lawyers no longer mixed up the term “mediation” with “meditation”.
A lawyer talked to me, “Now, conveyancing business from the property market is quite bad. Court litigation is however a major source of income for lawyers. If we are not staying on top of our money, you, by promoting the use of mediation, will put the financial well-being of our profession at risk!” I replied, “There will be no better change without contribution from each of us especially lawyers! The possible popularity of mediation, if getting widespread, may mean an additional source of income for lawyers because we can become mediators or assist clients to take part in the mediation process.”
Our mediation Centre launched a number of meaningful activities: We worked with various universities to provide mediation training courses, we set up examination and accreditation systems. We developed community mediation schemes with various government departments. We held seminars and public education projects.
Raymond, Sylvia & I jockeyed for more common use of mediation in the community of Hong Kong by lobbying from time to time the Secretary for Justice of the government including Miss Elsie Leung and Mr Wong Yan Lung. The turning point for the change of ADR landscape came in 2012 when our legislative Council passed a piece of law called Mediation Ordinance Cap 620 that provides a regulatory framework in respect of important aspects of the conduct of mediation and to encourage mediation to be a prerequisite in any court trials in Hong Kong. It does promote and facilitate the resolution of disputes by mediation. It places the values of mediation in judicial proceedings in Hong Kong.
Now, there are many, or perhaps far too many, mediation organisations in Hong Kong. I left Hong Kong Mediation Centre ages ago. I believe that a “non-government organisation ”(NGO) which, if to serve the public well, should be led by different people at different times. Power is what I am happy to give up. Also, leaders of an NGO must possess 3 things: integrity, ability and unselfishness. While I wish Hong Kong Mediation Centre good luck, I think it should elevate itself to a higher visionary position of promoting “Med-Arb” in Hong Kong. A “Med-Arb” is a dispute resolution process in which the parities agree that the mediator first try to mediate the dispute and, if mediation is unsuccessful in fully resolving the dispute, he will switch to the role of arbitrator.
The most wonderful things in life are not associated with money. They are memories that you can actualize yourself and contribute to others. History has to be told. So, I am gladly using my own memory to enrich our collective memories over the mediation developments in Hong Kong for the past 30 years. Mediation means a lot to Hong Kong, and let us hold it close to any court entrance.
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