Ch 10 Mediation & ADR

PRACTICE DIRECTION – 15.10

Family Mediation

Part 1 –  General

This Practice Direction replaces Practice Direction 15.10 of 2 May 2000 and 1 August 2003.

1.1     An underlying objective of the Rules of the High Court and the District Court is to facilitate the settlement of disputes.  The Court has the duty as part of active case management to further that objective by encouraging the parties to use mediation as an alternative dispute resolution procedure, if the Court considers that appropriate, and facilitating its use (“the duty in question”).  The Court has the duty of helping the parties to settle their case.  The parties and their legal representatives also have the duty of assisting the Court to discharge the duty in question.

1.2     The purpose of this Practice Direction is to assist the Court to discharge the duty in question; and to prescribe the procedure for family mediation in Matrimonial Proceedings and Family Proceedings, as defined in the Practice Direction 15.12, except applications in those family proceedings specified in paragraph 2.6.

1.3     Under this Practice Direction, unless the context otherwise requires –

“Co-ordinator” means the Mediation Co-ordinator appointed pursuant to the recommendation of the Steering Committee on Family Mediation.

“Leaflet” means the information leaflet prepared by the Co-ordinator, as may be revised from time to time, for promoting family mediation.

1.4    In exercising its discretion on costs, the Court takes into account all relevant circumstances. These would include any unreasonable failure of a party to engage in mediation where this can be established by admissible materials. Legal representatives should advise their clients of the possibility of the Court making an adverse costs order, where a party unreasonably fails to engage in mediation.

1.5     The Court will not make any adverse costs order against a party on the ground of unreasonable failure to engage in mediation where:

(i)   The party has engaged in mediation to the minimum level of participation1 agreed to by the parties or as directed by the Court.

(ii)  A party has a reasonable explanation for not engaging in mediation.

1.6     In all contexts, including dealing with matters arising under this Practice Direction and in exercising its discretion on costs, the Court cannot compel the disclosure of or admit materials so long as they are protected by privilege in accordance with legal principles, including legal professional privilege and the privilege protecting without prejudice communications.  What happens during the mediation process, being without prejudice communications, is protected by privilege.  It must be emphasized that there is no question of the Court undermining the protection afforded by privilege.

Part 2 –  Referral to Family Mediation Upon Institution of Matrimonial Proceedings/Family Proceedings

2.1     Legally Represented Petitioners in Matrimonial Proceedings/ Applicants in Family Proceedings

2.1.1     When a person consults a solicitor and decides to institute Matrimonial Proceedings/Family Proceedings, the solicitor shall advise that person of the availability of family mediation service and how it may assist in the proceedings and shall give to that person the Leaflet on the service.

2.1.2     To fulfill the requirements of 2.1.1, the solicitor shall, at the time the petition or the originating summons is filed, file with the Family Court Registry (the Registry) a “Petitioner’s/Applicant’s Certificate as to Family Mediation” in the form annexed hereto as Appendix 1 duly signed by the petitioner/applicant and the solicitor. If the petitioner/applicant indicates a desire to attempt family mediation, the Registry staff shall refer the case to the Co-ordinator.

2.1.3     The petitioner’s/applicant’s solicitor shall serve on the respondent, in addition to the petition/originating summons and Acknowledgment of Service (“Form 4”), a copy of the Leaflet, the signed “Petitioner’s/Applicant’s Certificate as to Family Mediation”, and the “Respondent’s Certificate as to Family Mediation”, in the form annexed hereto as Appendix 2.

2.1.4     If the respondent is legally represented, the solicitor shall complete, in addition to Form 4, the “Respondent’s Certificate as to Family Mediation”. If the respondent indicates a desire to attempt family mediation, the Registry staff shall check whether the referral to the Co-ordinator has been made and, if not, shall refer the request to the Co-ordinator who will then contact the petitioner/applicant to seek consent.

2.1.5     If the respondent is acting in person, the respondent may, in addition to Form 4, return the signed “Respondent’s Certificate as to Family Mediation” to the Registry. If this indicates a desire to attempt family mediation, the Registry staff shall check whether referral to the Co-ordinator has been made and, if not, shall refer the request to the Co-ordinator who will then contact the petitioner/applicant to seek consent.

2.2     Legally Unrepresented Petitioner in Matrimonial proceedings/ Applicant in Family Proceedings

2.2.1     When a petitioner/applicant acting in person files a petition/originating summons with the Registry, the Registry staff shall give to the petitioner/applicant a copy of the Leaflet together with the “Petitioner’s/Applicant’s Certificate as to Family Mediation” and shall inform the petitioner/applicant that the form shall be completed and shall be filed with the Registry. If the petitioner/applicant indicates a desire to attempt family mediation and files the “Petitioner’s/Applicant’s Certificate as to Family Mediation”, the Registry staff shall refer the request to the Co-ordinator. The Co-ordinator will then contact the respondent to seek consent.

2.2.2     The Registry staff shall also inform the petitioner/applicant that the petitioner/applicant shall serve on the respondent a copy of the Leaflet and the “Respondent’s Certificate as to Family Mediation” though the petitioner/applicant will not be obliged to ensure that the respondent will receive or complete the Certificate.

2.2.3     If the respondent in receipt of the petition/originating summons consults a solicitor, the solicitor shall advise the respondent of the availability of family mediation service and how it may assist in the proceedings and give to the respondent the Leaflet. The respondent’s solicitor shall complete, in addition to Form 4, the “Respondent’s Certificate as to Family Mediation”. If the respondent indicates a desire to attempt family mediation, the Registry staff shall check whether the referral to the Co-ordinator has been made and if not, shall refer the case to the Co-ordinator who will then contact the petitioner/applicant to seek the petitioner’s/applicant’s consent.

2.2.4     If the respondent is acting in person and returns the Form 4 to the Registry in person, the Registry staff shall hand to the respondent a copy of the Leaflet and the “Respondent’s Certificate as to Family Mediation”. The Registry staff shall also inform the respondent that the respondent may sign the Certificate and file it with the Registry. If the respondent indicates a desire to attempt family mediation, the Registry staff shall check whether referral to the Co-ordinator has been made, and if not, shall refer the case to the Co-ordinator who will then contact the petitioner/applicant to seek consent.

2.3     Legally Represented Applicants in Joint Applications in Matrimonial Proceedings issued pursuant to s. 11B of Matrimonial Causes Ordinance

2.3.1     When persons married to each other agree to institute Matrimonial Proceedings by joint application and consult their solicitors, the solicitors shall advise them of the availability of family mediation service and shall give to them the Leaflet.

2.3.2     The joint applicants and their solicitors shall complete the “Joint Applicants’ Certificate as to Family Mediation” annexed hereto as Appendix 3 and file the said certificate with the Registry. If in a joint application, either person indicates a desire to attempt family mediation, the Registry staff shall refer the case to the Co-ordinator with a copy of the Certificate. The Co-ordinator will then contact the other person to seek consent.

2.3.3     If only one person is legally represented, that person’s solicitor shall complete the said certificate for filing with the Registry.

2.4     Legally Unrepresented Joint Applicants in Joint Applications in Matrimonial Proceedings issued pursuant to s. 11B of Matrimonial Causes Ordinance

2.4.1     If persons married to each other, both acting in person, institute Matrimonial Proceedings by joint application, the Registry staff shall give to each of them the “Joint Applicants’ Certificate as to Family Mediation” in the form annexed hereto as Appendix 3 and a copy of the Leaflet.

2.4.2     The Registry staff shall inform the applicants that they shall complete the Certificate and file it with the Registry. If either or both persons have indicated a desire to attempt family mediation, the Registry staff shall refer the case to the Co-ordinator with a copy of the Certificate.

2.5     Other Respondent/Intervening Party to the proceedings

2.5.1     When the other respondent/intervening party in the Matrimonial Proceedings/Family Proceedings is legally represented, the solicitor shall advise the other respondent/intervening party of the availability of family mediation service and give to the party the Leaflet. The solicitor shall complete the “Other Respondent’s/Intervening Party’s Certificate as to Family Mediation” annexed hereto as Appendix 4 and file the same with the Registry. If the party indicates a desire to attempt family mediation, the Registry staff shall check whether the referral to the Co-ordinator has been made and if not, shall refer the case to the Co-ordinator who will then contact the other parties to seek consent.

2.5.2     If the other respondent/intervening party is acting in person and returns the Form 4 to the Registry in person, the Registry staff shall hand to the other respondent/intervening party a copy of the Leaflet and the “Other Respondent’s/Intervening Party’s Certificate as to Family Mediation”. The Registry staff shall also inform the other respondent/intervening party that the party may sign the Certificate and file it with the Registry. If the other respondent/intervening party indicates a desire to attempt family mediation, the Registry staff shall check whether the referral to the Co-ordinator has been made and if not, shall refer the case to the Co-ordinator who will then contact the other parties to seek consent.

2.5.3     If an intended respondent/intervening party is acting in person and takes out an application to seek leave to join as a party to the proceedings or upon an order being made to join a respondent/intervening party as party to the proceedings, the Registry staff shall hand to the intended respondent/intervening party a copy of the Leaflet and the “Other Respondent’s/Intervening Party’s Certificate as to Family Mediation”. The Registry staff shall also inform the intended respondent/intervening party that the party may sign the Certificate and file it with the Registry. If the intended respondent/intervening party indicates a desire to attempt family mediation, the Registry staff shall check whether the referral to the Co-ordinator has been made and if not, shall refer the case to the Co-ordinator who will then contact the other parties to seek consent.

2.6     Non-applicable Family Proceedings

For the avoidance of doubt, applications in the following Family Proceedings are “Non-applicable Family Proceedings” to which this Practice Direction does not automatically apply, unless directed otherwise by the Court:

Adoption Ordinance (Cap. 290);

Legitimacy Ordinance (Cap. 184);

Maintenance Orders (Reciprocal Enforcement) Ordinance (Cap.188);

Marriage Ordinance (Cap.181);

Marriage Reform Ordinance (Cap. 178);

Parent and Child Ordinance (Cap. 429).

Part 3 –  Referral to Family Mediation After Litigation Has Commenced

3.1     During the course of litigation, the petitioner or applicant or respondent may separately or jointly file with the Co-ordinator an “Application for Family Mediation”, in the form annexed hereto as Appendix 5. The Co-ordinator shall send a copy of the application to the Registry for record purpose.

3.2     Any application for family mediation filed with the Registry or lodged with the Co-ordinator in Forms in this Practice Direction shall not lead to an automatic stay in the litigation proceedings.

Part 4 –  Application for Directions, Interim Stay etc.

4.1     This Part applies to proceedings in which all parties are legally represented.

4.1.1     Where the parties have agreed to mediation but are unable to reach agreement on any matters or proposals relating to the arrangement for mediation, the parties may either singly, or jointly, make an inter partes application to the Court for directions, or the Court may of its own accord, give such directions as are appropriate to resolve the points of difference between the parties.

4.1.2     The Court may, on an inter partes application or of its own accord, stay the proceedings or any part thereof for the purpose of mediation for such period and on such terms as it thinks fit, bearing in mind the importance of avoiding so far as possible delay and avoiding, save in exceptional circumstances, any postponement of the trial dates.

4.1.3     Where the Court stays the proceedings, the parties must promptly inform the Court if a settlement is reached.

4.2     For proceedings in which one or more parties are not legally represented, the Court may give directions that the parties should follow the procedures set out in 4.1 of this Part with any necessary modifications.

5.     This Practice Direction shall come into effect on 2 May 2012.

Dated this 28th day of March 2012.

(Geoffrey Ma)
Chief Justice

1     An example of a specified minimum level of participation may be as follows: “Agreement between the parties as to the identity of the mediator and the terms of his or her appointment, agreement as to the rules applicable to the mediation (if any) and participation by the parties in the mediation up to and including at least one substantive mediation session (of a duration determined by the mediator) with the mediator”.

Appendix 1

Appendix 2

Appendix 3

Appendix 4

Appendix 5