Mediation is one of the cornerstones of the Civil Justice Reform in Hong Kong, and has now become a fixture in civil proceedings. Despite the judicial emphasis on mediation, there is a perception that many parties are not yet comfortable with using documents and passing information to each other as part of the mediation process. With the introduction of legislation that expressly protects the confidentiality of communications that are made not only in the course of but also for the purpose of mediation, it is hoped that litigants will make better use of the mediation process with the comfort that such statutory protection exists.The Mediation Bill aims to protect the confidential nature of any “mediation communication”, which is any communication made for the purpose of or in the course of mediation, but does not include an agreement to mediate or a mediated settlement agreement.
The Bill provides that mediation communications are confidential and must not be disclosed except under expressly specified circumstances. In some circumstances, such as where all parties involved including the mediator have consented to the disclosure, the court’s permission to disclose the communication is not required. In other cases, such as where parties wish to enforce or challenge a mediated settlement agreement, parties must apply to the court for permission to disclose a mediation communication. The court’s permission is also required in all cases where a party wishes to adduce a mediation communication as evidence in court proceedings.
The Bill has had its first and second readings in the Legislative Council but at present, there is no firm time frame for its enactment or coming into force.