Global Pound Conference Hong Kong – a mandate for change

Hong Kong's status as a leading international dispute resolution hub is well-known. It enjoys a strong, independent judiciary as well as world class international arbitration services. Mediation and other forms of ADR are heavily supported by a myriad of institutions. Although not a compulsory requirement, mediation in the context of civil litigation tends to be interpreted by commercial parties as a mandatory step. Against this backdrop, delegates voted at the recent Global Pound Conference Hong Kong, which saw over 200 delegates from across Hong Kong's disputes market congregate to discuss their approach to commercial dispute resolution. Hong Kong's Secretary for Justice, Chief Justice and Solicitor General headlined the conference.

Click here for our ebulletin on the Hong Kong results, and here for an article on technology in dispute resolution, featuring partner May Tai.

Click here to download our synopsis and infographics on the Hong Kong data as featured on our ADR hub.

Click here to download the aggregated results from the first 18 Global Pound Conference events, which have taken place in 12 countries in Africa, the Americas, Asia, Europe and the Middle East. This includes the very first analysis of the overall trends set to shape the future of dispute resolution globally.

The above provide insights for all stakeholders  – commercial parties, lawyers, experts, judges, arbitrators, mediators and government – on the areas of focus for Hong Kong as it seeks to maintain  – and expand – its position as a leading dispute resolution centre.

Mediation in Hong Kong and the Global Pound Conference: article published

Julian Copeman, May Tai and Anita Phillips discuss their client research and the outputs of the recent Global Pound Conference to assess what is required to bring mediation into the mainstream for commercial parties in Hong Kong. Click here to access their article in Asian Dispute Review, which was published on 3 April 2017.

Costs judge finds information from mediation is admissible when considering costs consequences of settlement

A costs judge has held that information about a party's costs provided for the purposes of a mediation could be used as evidence when considering the cost consequences of a subsequent settlement: Savings Advice Limited v EDF Energy Customers Ltd [2017] EWHC B1 (Costs) 

Documents produced for the purposes of mediation are generally covered by without prejudice privilege and, subject to limited exceptions, cannot subsequently be used as evidence. In the present case the costs information was provided in emails headed "without prejudice save as to costs", so it is perhaps not surprising that the costs judge concluded it could be used as evidence in subsequent cost proceedings.

However, other aspects of the reasoning for the decision are more surprising and arguably not supported by existing authorities regarding the without prejudice rule. In particular, the costs judge held that the costs information was not in any event covered by the privilege because it was a statement of pure fact rather than an admission or concession. Such distinction has been rejected in previous cases on the basis that requiring parties to a negotiation to constantly analyse whether they are making admissions or factual statements would undermine the privilege's purpose of enabling parties to speak freely in settlement negotiations (see for example the decision of the House of Lords in Ofulue v Bossert [2009] UKHL16, considered here).

While the decision will not necessarily be followed in future cases,  it serves as a reminder that parties should be aware of the limitations of without prejudice privilege and the circumstances in which information provided during mediation may be used in subsequent litigation. As a practice point, parties should ensure that they are clear as to what is intended when they provide or receive information  'without prejudice save as to costs' in the context of a mediation.

Gary Horlock (associate) and Jan O'Neill (professional support lawyer) in our dispute resolution team consider the decision further below.

Continue reading

ADR in Asia Pacific – Part 3

Further to our earlier posts (here and here) highlighting material from our recently updated Guide to Dispute Resolution in Asia Pacific, we now feature in part 3 the responses from New Zealand, Pakistan, Philippines, Singapore, Taiwan, Thailand and Vietnam to the question whether parties to litigation or arbitration are required to consider or submit to ADR procedures before or during proceedings.

Continue reading

Singapore: proposed new legislation to encourage mediation

A Mediation Bill has recently been put before the Singapore Parliament with a view to encouraging the growth of mediation in the jurisdiction.  The three key proposals in the Bill (which echo similar provisions in the EU Mediation Directive and various other mediation laws around the world) are:

(i)   A power (though not a duty) in the courts to stay proceedings in favour of mediation agreed by the parties

(ii)  A mechanism for settlement agreements reached at pre-litigation mediations to be recorded and enforced as court orders; and

(iii) Confirmation of the confidentiality of mediation communications.

Read more detail on the proposals here.  

 

UK: Civil Courts Structure Review recommends expanded role for ADR

The recently published final report of Lord Justice Briggs in his Civil Courts Structure Review includes some interesting conclusions as to the role currently played by ADR in the civil justice system in England and Wales and a number of recommendations aimed at expanding that role.

Key recommendations are for:

  • the proposed new Online Court to include an expanded range of conciliation options (beyond the short telephone mediation originally recommended); and
     
  • the re-establishment of a court-based out of hours private mediation service in County Court hearing centres.

Continue reading

CEDR Mediation Audit results published

The Centre for Effective Dispute Resolution (CEDR) has released the results of its Mediation Audit 2016, based on a survey of practising mediators in the UK.   (The results of a parallel survey of lawyer attitudes to mediation are to be published separately).

The audit is the seventh biennial survey CEDR has conducted in the last 14 years (in conjunction with the Civil Mediation Council).  The 2016 audit received 319 eligible responses from mediators. 

While it is important to bear in mind the empirical limitations of such reviews based on survey responses from a sample of market participants, the audit does highlight a number of interesting trends in civil and commercial mediation in the UK.    CEDR’s key findings from the responses include:

  • the current size of the civil and commercial mediation market in England & Wales is estimated at approximately 10,000 cases per annum (5.2% more than the 9,500 cases estimated in 2014)

Continue reading

UK: CEDR launches seventh biennial Mediation Audit

The Centre for Effective Dispute Resolution (CEDR) is inviting interested parties in the UK to take part in its Mediation Audit 2016.  

The audit, run in conjunction with the Civil Mediation Council, is the seventh audit that CEDR has conducted in the last 14 years.  (We reported on the results of the last audit here.)   The biennial audits are a valuable source of data on various aspects of the UK mediation landscape, including settlement rates, perceptions of mediation standards and priorities for development.

The audit comprises a survey for lawyers (in private practice or in-house) and a separate survey for mediators (including legally qualified mediators).  Each survey should take no longer than 10 minutes and is on an anonymous basis.

The survey closes on 30 April 2016, with the results to be published in late May.   

 

 

Singapore office hosts client event on mediation to launch latest ADR guide

On 16 February 2016, our Singapore office is holding an interactive session with in-house counsel on how to use mediation effectively. Alastair Henderson, managing partner of South East Asia, and Emmanuel Chua, senior associate, will be joined by Eunice Chua, deputy CEO of the Singapore International Mediation Centre, to discuss:

  • the "right" time to use mediation in a dispute
  • how in-house counsel can persuade various stakeholders within the company to participate effectively in a mediation to maximise settlement prospects
  • preparing for a mediation – beyond the formalities of submissions and settlement offers
  • positioning one's case in a mediation and beyond

The seminar will also launch the latest issue of our ADR in Asia Pacific guide series, which focuses on recent ADR developments in Singapore. For more details see the invitation. To request a copy of this guide, please email asia.publications@hsf.com

Study by Singapore Academy of Law suggests strong preference for arbitration over mediation

The Singapore Academy of Law (SAL) has published the results of its study on preferences for the choice of governing law and jurisdiction by those involved in cross-border transactions in Singapore and the region (the Study). 

The Study reflects the views of around 500 commercial law practitioners and in-house counsel who have involvement in cross-border transactions. In terms of dispute resolution processes, the key outputs are:

  • 71% of respondents indicated that arbitration was the favoured method of dispute resolution, compared to 24% for litigation and 5% for mediation. Mediation's low score is perhaps surprising and the outcome may reflect the way the Study question was framed, given that mediation is often attempted within the framework of litigation or arbitration and should not be selected as a sole method of dispute resolution,given that it may not reach a determinative outcome.
  • Enforceability of decisions was cited as a key priority by respondents. Given the importance of enforceability in choosing litigation or arbitration, the introduction of the hybrid Arb-Med-Arb protocol by the Singapore International Mediation Centre in partnership with the SIAC may encourage the use of mediation in Singapore in the future. As described in our previous blog post, the combined process can result in a consent award enforceable under the New York Convention 1958.
  • All industry sectors represented by the Study showed a strong preference for arbitration.  Consistent with our own experience, the highest scores were shown in the Construction and Oil & Gas sectors, at 84% and 82% respectively. The highest score for litigation was the Banking and Finance sector at 30%. 

Click here to read more on our Arbitration Notes blog.