These Rules are published by the Hong Kong Arbitration Society and can be applied to mediations conducted by the Hong Kong Arbitration Society's Panel of Mediators
1. Mediation under these Rules is a confidential, non-adversarial and co-cooperative decision-making process in which a qualified and impartial third party, “the mediator”, helps parties resolve their disputes. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution. The parties to a dispute, with the facilitation of the mediator, identify the disputed issues, develop options, consider alternatives and endeavour to reach a voluntary settlement based upon sufficient information and legal advice for each party.
2.These Rules apply to the mediation of present or future disputes where the parties seek amicable settlement of such disputes and where, either by stipulation in their contract or by agreement, they have agreed that these Rules shall apply. The parties may agree to vary these Rules at any time.
3. If a dispute arises, a party may request the initiation of mediation by delivering a written notice to request for mediation to the other party or parties (“the Mediation Notice”). The Mediation Notice shall contain:-
(a) a brief self-explanatory statement of the nature of the dispute,
(b) the quantum in dispute (if any),
(c) mode of mediation (whether the mediation will be conducted in person, by video conference, by telephone, online or other electronic or computer communication forms),
(d) the proposed venue (if the mediation is proposed to be conducted in person),
(e) the proposed date and time of the mediation meetings,
(f) the proposed language of mediation,and
(g) the nomination of a mediator or mediators thought suitable.
4. (a) A party or parties who receive the Mediation Notice shall deliver a written response (“the Mediation Response) to notify any other party within 7 days after receipt of the Mediation Notice whether the nominated mediator, the proposed mode of mediation, the proposed venue (if the mediation is proposed to be conducted in person), the proposed date and time of the mediation meeting and the proposed language of mediation are acceptable. Failure by any party to reply within 7 days shall be treated as a refusal to mediate.
(b) Where the parties put forward differing proposals in the Mediation Notice and Mediation Response, the parties should attempt to reach agreement on the proposals on which they differ within 14 days of the date of Mediation Notice. Any agreement consequent upon such discussion should be reduced into writing in a minute signed by the parties or their solicitors.
5. (a) Where the parties agree on the proposed mode of mediation, the proposed venue (if the mediation is proposed to be conducted in person), the proposed date and time of the mediation meeting, the proposed language of mediation and the nominated mediator, and the proposed mediator is willing to serve, the mediation shall then proceed in accordance with these Rules.
(b) If the parties fail to agree the mode of mediation within the time stipulated in Rule 4, they shall notify the Hong Kong Arbitration Society which shall decide the mode of mediation.
(c) Where the mediation is conducted in person and if the parties fail to agree the venue within the time stipulated in Rule 4, they shall notify the Hong Kong Arbitration Society which shall decide the venue.
(d) If the parties fail to agree the date and time of the mediation meeting within the time stipulated in Rule 4, they shall notify the Hong Kong Arbitration Society which shall decide the date and time of the mediation meeting.
(e) If the parties and the mediator fail to agree the language of the mediation within the time stipulated in Rule 4, they shall notify the Hong Kong Arbitration Society which shall decide the language of the mediation.
(f) If the parties fail to agree the mediator within the time stipulated in Rule 4, they shall notify the Hong Kong Arbitration Society which shall appoint a single accredited mediator who is prepared to serve and is not disqualified under Rule 6.
6. No person shall act as mediator in any dispute in which that person has any financial or personal interest in the result of the mediation except by written consent of the parties. Before accepting an appointment, the proposed mediator shall disclose to the parties (and to the Hong Kong Arbitration Society if the Hong Kong Arbitration Society has made the appointment under Rule 5) any prior dealings with either of the parties or any circumstances likely to create a presumption of bias or prevent a prompt resolution of the dispute. Upon receipt of the information the Hong Kong Arbitration Society shall immediately communicate the information to the parties for their comments. If any party takes objection to the proposed mediator within 7 days he shall not be appointed. In such case the Hong Kong Arbitration Society shall nominate another suitable accredited mediator.
7. The mediator shall commence the mediation not later than 28 days after the service of the Mediation Notice.
8. The mediator may conduct the mediation in such manner as he considers appropriate, taking into account the circumstances of the case, the wishes of the parties and the need for a speedy settlement of the dispute.
9. The mediator may communicate with the parties together or with any party separately, including private meetings, and each party shall co-operate with the mediator. A party may request a private meeting with the mediator at any time. The parties shall give full assistance to enable the mediation to proceed and be concluded within the time stipulated.
10. Subject to the consent of both parties, the parties may be represented or assisted by persons of their choice. Such persons must sign a separate confidentiality agreement and agree to abide by these Rules. Each party shall notify in advance the names and the role of such persons to the mediator and the other party. Each party shall have full authority to settle or be accompanied by a person with such authority.
11. The mediation process shall come to end:-
(a) Upon the signing of a settlement agreement by the parties;
(b) Upon the written advice of the mediator after consultation with the parties that in his opinion further attempts at mediation are no longer justified;
(c) Upon written notification by any party at any time to the mediator and the other parties that the mediation is terminated;
(d) Upon the failure by any party to deliver the Mediation Response within 7 days of receiving the Mediation Notice;
(e) Upon the failure of the dispute to be settled within 42 days of the service of the Mediation Notice unless the time is agreed to be extended by the parties and mediators.
12. (a) Mediation is a private and confidential process. Every document, communication or information disclosed, made or produced by any party for the purpose of or related to the mediation process shall be disclosed on a privileged and without prejudice basis and no privilege or confidentiality shall be waived by such disclosure. Confidentiality also extends to the settlement agreement except where its disclosure is necessary for implementation or enforcement.
(b) Nothing that transpires during the course of the mediation is intended to or shall in any way affect the rights or prejudice the position of the parties to the dispute in any subsequent arbitration, adjudication or litigation.
13. (a) Unless otherwise agreed, each party shall bear its own costs regardless of the outcome of the mediation or of any subsequent arbitral or judicial proceedings. Subject to any agreement to the contrary, all other costs and expenses shall be borne equally by the parties and the parties shall be jointly and severally liable to pay to the mediator such costs, including:-
(i) the mediator's fees and expenses;
(ii) expenses for any witness or expert advice or opinion requested by the mediator with the consent of the parties; and
(iii) any costs of venue and administrative costs in support of the mediation including the Hong Kong Arbitration Society and other service provider's costs.
(b) Hong Kong Arbitration Society may at any time during the mediation require the parties to make deposits to cover any anticipated fees and expenses and suspend the process until such deposit is made.
(c) Any surplus funds deposited shall be returned to the parties at the conclusion of the mediation.
14. No party shall be entitled to call the mediator as a witness in any subsequent adjudication, arbitration or judicial proceedings arising out of the same contract.
15. The parties jointly and severally release, discharge and indemnify the mediator, the Hong Kong Arbitration Society and other service provider in respect of all liability whatsoever, whether involving negligence or not, from any act or omission in connection with or arising out of or relating in any way to any mediation conducted under these Rules, save for the consequences of fraud or dishonesty.
16. These Rules, the mediation agreement and the mediation clause referred to in these Rules shall be governed by, and construed and take effect in accordance with the substantive law of Hong Kong.
English is the original drafting language of these Rules. In the event of any discrepancy or inconsistency between the English version and the Chinese version, the English version shall prevail.