Hong Kong Law Reform Commission

Chapter 5 - Recommendations for reform – Court based support facilities for family mediation

• Introduction
• Task Group on establishment of a family court
• Pilot project for court based family mediation scheme
• Our proposals for court based family mediation
• Information on family dispute resolution support services
• Obligation on solicitors
• Information sessions
• Referral to information sessions
• The court’s powers in relation to mediation
• Issue of compulsory powers
• Additional proposals on court based mediation
• ‘Working party’ to take account of special needs of children
• Counselling conference
• Support Services Co-ordinator
• Support services accommodation at the Family Court
• Screening and matching cases for mediation

Introduction

5.1 The choice of approaches for the resolution of child custody disputes is between the traditional adversarial process and the alternative dispute resolution process, most commonly associated with mediation. We have outlined these different approaches in Chapters 1 and 2 of this report.

5.2 As we noted in Chapter 2, Hong Kong has seen significant developments recently in the area of mediation with the implementation of the Pilot Scheme on Family Mediation at the Family Court.[357] There have also been new proposals for the reform of the civil litigation system generally from the Chief Justice's Working Party on Civil Justice Reform.[358]

5.3 In line with these initiatives, our approach in considering the reforms that may be necessary in this area has been to focus on how to minimise the adversarial nature of family proceedings and how to shorten potential delays in the processing of family cases through the courts.

5.4 Our review has included:

(a) the court-based support services to facilitate family mediation in Hong Kong, which are the subject of this chapter;
(b) family mediation services generally in Hong Kong, which are examined in Chapter 6; and
(c) the family litigation process itself, as well as other related matters, which are discussed in Chapter 7.

5.5 In arriving at our final recommendations on court based support services, which are the subject of this chapter, we have revisited our earlier proposals for reform contained in the Consultation Paper on Guardianship and Custody,[359] and have also considered recommendations advocated by others looking into this area.[360]

5.6 As will be seen from the discussion below, a number of these earlier recommendations have already been provisionally implemented through the Pilot Scheme on Family Mediation at the Family Court. We nonetheless consider it worthwhile, where appropriate, to reiterate our endorsement of these recommendations, in order to add our voice to those advocating the future expansion of the Pilot Scheme on Family Mediation into a permanent service.[361] There are also areas where our proposals diverge from those implemented under the Pilot Scheme. We therefore take the opportunity here to highlight these differences. We trust that these alternative or supplementary proposals may also be considered by the Administration in the context of its long-term strategy planning for mediation in family litigation.

Task Group on establishment of a family court

5.7 In our Consultation Paper,[362] we generally approved and adopted the recommendations of the report of the Task Group on a Family Court,[363] which stated that “conciliation and counselling are the services that are ... at the root of establishing a proper Family Court system.”[364] The Task Group’s report had recommended that an office should be provided at the Family Court for conciliators and counsellors to offer their services. Referral for counselling or conciliation might also be made to qualified persons outside the court. A Court Conciliation Co-ordinator would act as a liaison between the parties, their legal representatives, the court and conciliation agencies. The staff would liaise with the lawyers to “guarantee an early settlement and efficient case management.”[365] The Task Force considered that a conciliation service based in the court would help parties to deal with the emotional, practical and legal aspects of their dispute and to negotiate a settlement.[366]

5.8 Although we preferred the terms “mediation” and “mediators” to “conciliation” and “conciliators,” we recommended in our Consultation Paper[367] that, in line with the approach of the Task Group, mediation should be an integral part of the Family Court system.[368] We noted that providing support by allocating more resources to promoting mediation, information sessions and parent education would complement the court process. In particular, we felt that it was necessary to connect these support services and resources to the court system to ensure court accessibility and accountability. We also recommended that these family litigation support services should be government funded.[369]

5.9 On consultation, these recommendations were endorsed by most of the respondents who commented on this area. One respondent noted that mediation proposals generally may be difficult to implement where the parties were hostile towards each other. Another respondent submitted that the recommendation on Government funding for the proposed services would have extensive cost and resources implications. We have taken note of these respondents’ concerns while endorsing our original approach.

Pilot project for court based family mediation scheme

5.10 With a view to establishing mediation as a permanent method of dispute resolution, we recommended in our Consultation Paper that a pilot project on court-annexed mediation should be launched at the Family Court.[370] We elaborated both on how the scheme should be established and what it should provide, and observed that it should be, “an experimental undertaking of limited scope and duration prior to the implementation of a full-scale scheme.”[371]

5.11 In particular, we recommended that:

5.12 Following the publication of our Consultation Paper, and the subsequent publication of the Report of the Working Group to Consider a Pilot Scheme for the Introduction of Mediation into Family Law Litigation in Hong Kong,[384] a pilot scheme for mediation at the Family Court was established and launched in May 2000.

Our proposals for court based family mediation

5.13 The details of those of our recommendations on court based mediation which remain relevant are set out below.

Information on family dispute resolution support services

5.14 We recommended in our Consultation Paper that the courts should do more to put parents in touch with support services. We observed that more publicity and education of the public was needed to encourage families to go for assistance to local family service centres or other agencies at an early stage of conflict or when problems were first encountered. We recommended that the Family Court should provide information relating to court processes, support services and alternatives to litigation. We also commented that leaflets such as the Information Kit on Marriage should be available at the Family Court itself and in the lobby of the High Court Building.

5.15 In relation to mediation specifically, we observed that as this was a relatively new service, mediation needed considerable publicity if it was to be used as a credible alternative to the adversarial process.[385] We therefore proposed that the court should be under a duty to actively promote mediation and the Chief Justice should approve a document which set out the benefits and procedure for mediation. As with other forms of alternative dispute resolution, we recommended that information pamphlets should be available at the Family Court and the family services centres which should include information on the availability of, and encouragement to use, mediation as an alternative to litigation. We also considered that information on mediation services should be included in pamphlets such as the Information Kit on Marriage, and that the pamphlets and the Information Kit should be periodically updated.

5.16 These recommendations on the promotion of dispute resolution alternatives were widely supported by our respondents to the consultation exercise.

Obligation on solicitors

5.17 Many countries put solicitors under a statutory obligation to inform and encourage their clients to consider the possibility of reconciliation and, failing that, counselling and mediation.[386] Form 2A of the Matrimonial Causes Rules (Cap 179) requires the solicitor for the petitioner to certify whether or not he has discussed with his client the possibility of a reconciliation, and whether or not he has provided his client with the names and addresses of persons qualified to help effect a reconciliation.[387]

5.18 We recommended in our Consultation Paper that solicitors should be obliged to inform and encourage their clients to consider the possibility of reconciliation, and that the applicant (and the respondent when he is served with the pleadings) should be informed of the nature and purpose of counselling and mediation and offered a list of services for reconciliation, counselling and mediation. This information would be in a pamphlet approved by the Family Court.

5.19 On consultation, all but one of the respondents who commented on this recommendation supported it. The objecting respondent considered that obliging the solicitor to encourage his client to consider reconciliation was encouraging the lawyer to play amateur psychologist or sociologist which was not his role. We considered this view but did not agree with it as the thrust of the recommendation was to ensure that clients were informed about alternative, non-adversarial dispute resolution services.

Information sessions

5.20 Information sessions illustrate the range of options for managing disputes and:

“give a more detailed overview of the mediation process. Educational components are also included covering the separation process, communication patterns, children’s reactions to separation in the context of child development, couple suitability for mediation and the range of issues that can be mediated.”[388]

5.21 We recommended in the Consultation Paper that a voluntary information session should be introduced, which would be a service open to everyone. It would be attended by the parties before the filing of the petition in the majority of cases. It would encompass elements of the United States parent education programmes and the Australian information sessions.

5.22 We envisaged that, at the information session, parties could receive information and advice about family support services and alternatives to litigation such as mediation. Information to educate parents on the psychological process of divorce and its effect on children would also be included, by way of oral presentation, video and information packs. The presentation would be made by persons with counselling and mediation training. Clients should also be informed by solicitors, the Legal Aid Department and the Duty Lawyer Service of the availability of information sessions. The information on such services could be contained in a pamphlet approved by the Family Court.

5.23 These proposals were widely supported by respondents to our consultation exercise and some additional suggestions were received. One respondent emphasised that the information session presentations should be available in Cantonese, English and Putonghua, and that the comprehensive information kits should be in both Chinese and English. It was also suggested that separate language information sessions should be available, and that they should be held frequently, perhaps every one or two weeks in each language, as it might be preferable for the parties to go to separate sessions. One respondent also proposed that security personnel should be provided at the information sessions. We have considered these suggestions and agree that they have merit.

5.24 Another issue for respondents was whether or not the information sessions should be compulsory. We have considered the views of those respondents who advocated that information sessions should be compulsory for all divorcing parties, but have concluded that (save for the court’s powers in relation to referring parties to attend information sessions, which is discussed further below), we do not agree with the approach of making attendance compulsory.

Referral to information sessions

5.25 Encouragement by those involved in the family dispute resolution system, whether solicitors, judges, or indirectly, social workers, is necessary to ensure that as many parties as possible receive the benefit of attending information sessions.

5.26 We therefore recommended in the Consultation Paper that solicitors should be placed under an obligation to inform their clients about the availability of the information session.

5.27 We also recommended that the judges of the Family Court should have the power to refer the parties to attend an information session. We proposed that this would not be an order as such, but would be a power to suspend or adjourn further progress on the proceedings pending such attendance.

5.28 On consultation, most of the respondents who commented on this recommendation supported it. However, one consultee expressed concern over the court’s power to suspend further progress on the proceedings pending the parties' attendance at the information session. The consultee’s objection was that, in order to promote alternative processes of dispute resolution, this proposal could effectively deny parties their access to litigation. After some discussion on this objection, we came to the view that it would be preferable to modify the proposal to give the court the power to order the parties to attend an information session, as this would give the parties so ordered the right to appeal against the judge’s decision, if they considered it necessary.

The court’s powers in relation to mediation

5.29 We recommended in the Consultation Paper that the voluntary mediation recommendations of the report of the Chief Justice’s committee on court-annexed mediation[389] should be adopted, to the effect that the court should only be able to order the parties to attend mediation if they agree. We noted that Section 15A of the Matrimonial Causes Ordinance (Cap 179) allows the court to adjourn if there is a reasonable possibility of reconciliation. We proposed that there could be a similar provision to encourage mediation.

5.30 We recommended in the Consultation Paper the introduction of a provision along the lines of section 19A of the Australian Family Law Act 1975 empowering potential litigants or parties to file a notice in the Family Court seeking the appointment of a mediator. We also recommended that a provision should be enacted that where the parties agreed to go to mediation, but could not agree on a mediator, the court could appoint a suitable mediator. We considered that judges should not become directly involved in mediation but proposed that if one party did not consent to adjourn the case for mediation then the judge could use his best endeavours to encourage mediation.

5.31 We further recommended that, before a case was set down for hearing, the parties should provide a certificate to satisfy the court that mediation was or was not considered, or that it was not appropriate.

5.32 On consultation, these recommendations received general support from the respondents who commented on them, although one respondent expressed concern that introducing mediators into the process where parties were very hostile would only prolong the proceedings, as the parties would need to go to court in any event. This view was noted, but we concluded that mediators would generally not waste time trying to mediate in such cases, and would simply report back to the court either that mediation had been attempted but was not successful, or that mediation was not an appropriate option.

5.33 We also noted a second respondent’s view that there was some potential contradiction in the role of the judge who, on the one hand, was not intended to be involved in the mediation process in any way, while on the other, might be called upon to encourage the parties to mediate. We do not agree that this raises a significant conflict.

Issue of compulsory powers

5.34 We noted in our Consultation Paper that there was some merit in giving power to a judge to refuse to set down an action until the parties had certified to the judge that they had attempted some form of mediation. We also proposed that a judge should have power to recommend that the parties attempt to resolve matters through mediation, and if necessary in exceptional cases, to require them to do so. However, we did not agree that mediation should be compulsory at this time. We welcomed submissions from consultees on whether or not proposals on compulsory mediation contained in the report of the Chief Justice’s committee on court-annexed mediation[390] should be adopted for the resolution of custody disputes.

5.35 The issue of whether or not mediation should be compulsory proved to be a controversial one on consultation. Although most of the respondents supported the recommendation not to make mediation compulsory, we noted that some support was expressed for the opposite view. We concluded, however, that there would need to be very cogent arguments put forward before we could endorse mandatory mediation, as cases will arise where it is simply not an appropriate option to pursue. We are also of the view that the quality and content of the information sessions on mediation might prove to be an important factor in encouraging parties to make use of the mediation process.

Additional proposals on court based mediation

5.36 We have noted earlier in this chapter that, although the Pilot Scheme on Mediation in the Family Court has reflected many of our proposals in this area, some significant differences remain. We set out these alternative or supplementary proposals below, and trust that these may also be considered by the Administration in the context of the long-term implementation plans for mediation at the Family Court.

‘Working party’ to take account of special needs of children

5.37 In relation to our early proposal for a working party to be set up to consider whether court-annexed family mediation should be established in Hong Kong, we advocated that the working party should “look closely at the special needs of children, and how best to protect them in mediation and in the family court.”[391] We also noted that this “has implications for what type of Family Court would best balance the needs of the litigants, their children, the Judiciary and the court administration.”[392] We remain of the view that the special needs of children should be carefully and specifically considered in the future planning and development of family mediation and the family litigation system generally in Hong Kong.

Counselling conference

5.38 In our Consultation Paper, we proposed the introduction of mandatory counselling conferences in addition to mediation.[393] “Conciliation counselling,” as it is termed in Australia, has broader aims than mediation, in that it can include counselling to help parents and children adjust to marital separation and to work through their anger and hurt. Conciliation counselling takes place at a conciliation conference with a court counsellor. It is designed to reduce conflict and encourage agreement on practical issues, particularly issues concerning custody and access. The court counsellors are social workers or psychologists specially trained in dealing with relationship breakdown. Parents are encouraged to make use of these processes to avoid having a contested hearing which only entrenches the conflict between them.

5.39 We noted in our Consultation Paper that section 62F of the Australian Family Law Act 1975[394] gives a discretion to the court, in relevant proceedings,[395] to direct parties to a conciliation conference to discuss a child’s care, welfare and development, and to try and resolve the parties’ differences. The rationale is that a mandatory counselling conference gives all parties the opportunity to resolve some of the issues that block parents from focusing on the best interests of the children. If parties settle their differences at a counselling conference, they can then proceed to have a consent order drawn up and the need for mediation is avoided.

5.40 We recognise the merit of conciliation conferences as a process of dealing, not only with the legal process of divorce, but also with the emotional process, which otherwise is largely ignored by our legal system. We therefore recommended in the Consultation Paper[396] that a process similar to the Australian conciliation conference should be introduced, but we preferred the term “counselling conference” in order to avoid any confusion with mediation. We recommended that the conferences could be run by counsellors[397] and should be publicly funded.

5.41 We recommended that the counselling conference should be a necessary stage in the court process and would be seen as an integral part of the case management process of the court system. We recommended that the Support Services Co-ordinator should advise the judge in writing as to whether the parties had or had not attended the counselling conference, so that the next stage in the process could be initiated.[398]

5.42 We also recommended that if there were disputes between parents both on children’s issues and financial matters, a joint counselling conference should be held to deal with such issues together.[399]

5.43 Respondents who commented on these recommendations during the consultation exercise observed the need to clearly distinguish between counselling and mediation conferences. It was noted that the primary purpose of mediation was to assist with resolving practical issues in dispute between the parties, while the purpose of counselling was to help resolve emotional problems and blockages.

5.44 Although most of the respondents in this area welcomed the recommendations on counselling, one organisation commented that resort to counselling conferences should be confined to appropriate cases only, and should not be made a mandatory part of the case management process of the court system. Whilst we note this respondent’s view, we maintain our original approach that participation in a counselling conference should be a necessary part of the family litigation process.

Support Services Co-ordinator

5.45 We recommended in our Consultation Paper that the post of “Support Services Co-ordinator” should be created, whose duty would be to facilitate the proper functioning of the services that support the Family Court dispute resolution system.[400] A similar post of Mediation Co-ordinator has of course been created under the Pilot Scheme. However, the role of Support Services Co-ordinator, as envisaged under our recommendations, was a broader one, extending beyond mediation to counselling conferences and referral of parties to counselling outside the court.[401]

5.46 Under our proposed model, the Support Services Co-ordinator would assess the needs of the parties for counselling, a counselling conference or mediation. The Co-ordinator would refer suitable cases to the appropriate persons, whether Social Welfare Department counsellors or mediators, community mediation or counselling services, professional mediators and counsellors, or other support services.

5.47 We also proposed that there would need to be more than one Support Services Co-ordinator, as they would also co-ordinate referrals to the information sessions and counselling conferences. Reports of progress could be made to the Support Services Co-ordinator who would also liaise with legal representatives. In order to make the appropriate referrals, the Co-ordinator could look at affidavits or information sheets, or interview the parties if necessary. The Co-ordinator would obtain feedback from clients and the professionals involved so as to assess any need for improvement in the delivery of family litigation support services. The Co-ordinator would also liaise with the staff of the Social Welfare Department who provide reports to the court on the parties.

5.48 All of the respondents to the consultation exercise who commented on this proposed role of the Support Services Co-ordinator expressed support for it.

Support services accommodation at the Family Court

5.49 We proposed in our Consultation Paper that the accommodation for the Family Court should include comfortable consultation rooms to protect the privacy of the parties and their children. It was our view that this would improve the settlement environment of the court. We also suggested that there should be an office for counsellors and mediators who could be available for clients during normal office hours, and also to assist the court on the dates when there were call-over lists. We noted that the advantage of having such staff on duty at the court was that this may be more effective in achieving resolution than having the two sets of lawyers negotiating at the “door of the court” at a call-over or hearing.[402]

5.50 Most consultees who responded under this head during the consultation exercise supported these proposals, although a variety of qualifying observations were made. One respondent emphasised that a clear distinction needed to be maintained between counselling services and mediation services. We certainly endorse this view. It was also commented that non-Government and private mediation services should not be excluded from being promoted through the courts. Other respondents considered that only the Support Services Coordinator and his support staff should be permanently housed at the family court, and that mediators and counsellors should simply have use of facilities at the court. Another respondent said that some distance should be maintained between the court and the support services (as under the present Pilot Scheme arrangement, where only the Mediation Co-ordinator's office is housed at the court) so that mediation itself would be conducted elsewhere. We note these comments.

Screening and matching cases for mediation

5.51 The writers Benjamin and Irving suggested that the critical question for policy makers was not whether mediation was useful, but how to use it to the best advantage by matching clients with the specific service model best suited to their needs.[403] They recommended a screening process to achieve this end. They observed that if the referral and intake service did not make an appropriate “diagnosis,” then the “treatment” suggested might be inappropriate and cause more problems and expense for the system. However, when the characteristics of a case were matched to the appropriate dispute resolution process, then processes such as mediation and counselling conferences would be seen as complementing the formal court system. This would also increase the choice for the consumer and the professionals that advise them.[404]

Domestic violence and sexual abuse guidelines

5.52 The New Zealand Boshier report[405] recommended that “ordinarily, where an application for domestic protection is made and where it is coupled with a guardianship application, mediation is inappropriate.”[406] The report also recommended that::

“cases involving actual sexual abuse allegations should not be referred to the Family Conciliation Service,[407] at least until the allegations were properly investigated and only then with the parties’ agreement and judge’s review of any agreement reached.”[408]

5.53 We therefore recommended in the Consultation Paper that guidelines for cases of domestic violence and child sexual abuse should be established to screen cases for family mediation on a similar basis to the Australian and New Zealand guidelines. All of the respondents who commented on these proposals during the consultation exercise expressed support for them.

[357] See Hong Kong Polytechnic University, Evaluation Study on The Pilot Scheme on Family Mediation: Interim Report (Apr 2002).

[358] See Chief Justice's Working Party on Civil Justice Reform, Civil Justice Reform – Interim Report and Consultative Paper (Nov 2001).

[359] HKLRC Sub-committee on Guardianship and Custody, Consultation Paper: Guardianship and Custody (Dec 1998), Chapter 12 and Chapter 15 (Parts G and H).

[360] See Hong Kong Council of Social Service Task Group on Family Court, Proposals on the Establishment of a Family Court in Hong Kong (1989); The Hong Kong Marriage Advisory Council, Evaluative Research Report on the Marriage Mediation Counselling Project (Oct 1991); Hong Kong Law Reform Commission, Report on Grounds for Divorce and the Time Restrictions on Petitions for Divorce within Three Years of Marriage (1992: Topic 29); Report and Recommendations of The Chief Justice’s Committee on The Desirability of Introducing a Court Annexed Mediation Scheme in Hong Kong and Related Matters (Aug 1993); Report of the Working Group to Review Practices and Procedures Relating to Matrimonial Proceedings (Aug 1996); Report of the Working Group to Consider a Pilot Scheme for the Introduction of Mediation into Family Law Litigation in Hong Kong (Apr 1999).

[361] See Hong Kong Polytechnic University (2002), above, at para 112(a).

[362] HKLRC Sub-committee on Guardianship and Custody (1998), above, at paras 12.51 and 15.94.

[363] Hong Kong Council of Social Services Task Group (1989) above.

[364] Same as above, at para 7.

[365] Same as above, at para 7.1.3.

[366] Same as above, at para 2.4. See also Elsie Leung (now Secretary for Justice), “Divorce, what next?” Hong Kong Lawyer (Jan 1990), 53, at 54, which contained similar proposals and Wright “Alternative Dispute Resolution and Case Management,” Hong Kong Lawyer (Sep 1994), 18, at 19.

[367] HKLRC Sub-committee on Guardianship and Custody (1998), above, at paras 12.51 and 15.94.

[368] Same as above, at paras 12.102 and 15.114.

[369] Same as above, at paras 12.51 and 15.94.

[370] Same as above, at paras 12.102 and 15.114.

[371] Same as above, at para 12.100.

[372] Same as above, at paras 12.99 and 15.113. This recommendation was overtaken by events when, in October 1997, the Chief Justice established the Working Group to Consider a Pilot Scheme for the Introduction of Mediation into Family Law Litigation in Hong Kong, chaired by The Hon Mr Justice Hartmann. We welcomed this development.

[373] Same as above, at paras 12.110 and 15.116.

[374] Same as above, at paras 12.54 and 15.95.

[375] Same as above, at paras 12.65, 12.67, 12.69 and 15.100-15.102.

[376] Same as above, at paras 12.64-12.65, 12.67 and 15.99-15.102.

[377] Same as above, at paras 12.72-12.73, 12.76, 15.103-15.104 and 15.106.

[378] Same as above, at paras 12.80-12.81, 12.85 and 15.107-15.109.

[379] Same as above, at paras 12.85 and 15.109.

[380] Same as above, at paras 12.54 and 15.95.

[381] Same as above, at paras 12.116 and 15.119.

[382] Same as above, at paras 12.117 and 15.120.

[383] Same as above, at paras 12.104 and 15.115. It should be noted that a number of the members of the Chief Justice’s Working Group were also members of our Sub-committee.

[384] Working Group to Consider a Pilot Scheme for Family Mediation (1999), above.

[385] HKLRC Sub-committee on Guardianship and Custody (1998), above, at para 12.60.

[386] Australia, New Zealand, Canada, and Ireland. Section 12 of the English Family Law Act 1996 gives power to the Lord Chancellor to make rules requiring legal representatives to inform parties of the availability of marriage support services and mediation and to give names and addresses of persons qualified to effect a reconciliation or in connection with mediation.

[387] See Rule 12 of the Matrimonial Causes Rules (Cap 179, subsid leg).

[388] Gibson, “Mediation of Family Disputes in the Family Court of Australia,” paper at the Fifth National Family Law Conference, Perth, September 1992.

[389] Report and Recommendations of The Chief Justice’s Committee on The Desirability of Introducing a Court Annexed Mediation Scheme in Hong Kong and related matters (Aug 1993).

[390] Report and Recommendations of The Chief Justice’s Committee on The Desirability of Introducing a Court Annexed Mediation Scheme in Hong Kong and related matters (Aug 1993).

[391] HKLRC Sub-committee on Guardianship and Custody (1998), above, at para 12.99.

[392] Same as above.

[393] HKLRC Sub-committee on Guardianship and Custody (1998), above, at paras 12.80-12.81 and 15.107-15.108.

[394] As substituted by the 1995 Act. The rules of court were amended in 1995. See Order 24 relating to conciliation conferences.

[395] This concerns the care, welfare and development of a child who is under 18. A parenting order cannot be made unless the parties have attended a conciliation conference, though there are exceptions including orders by consent and interim or urgent orders where attendance would be impracticable or there are special circumstances such as family violence: see section 65F Australian Family Law Act as substituted by the 1995 Act.

[396] HKLRC Sub-committee on Guardianship and Custody (1998), above, at paras 12.80 and 15.107.

[397] We had included in the terms of our original recommendation the wording “mediators or” before “counsellors” (see HKLRC Sub-committee on Guardianship and Custody (1998), above, at paras 12.81 and 15.108). In hindsight, we agree with the view of one of our respondents that this could cause confusion with the mediation process, thus we now confine the intended role to “counsellors” only.

[398] Same as above, at paras 12.80 and 15.107.
[399] Same as above, at paras 12.81 and 15.108.

[400] HKLRC Sub-committee on Guardianship and Custody (1998), above, at paras 12.85 and 15.09.

[401] We also noted in our original recommendation that, “We prefer the term 'Support Services Co-ordinator' (SSC) to that of 'Conciliation Co-ordinator' used in the report of the Task Group on a Family Court to avoid confusion with reconciliation.”

[402] We also observed, however, that bargaining on the morning of a hearing should diminish if issues and settlement conferences, as discussed in Chapter 6 of this report, were to be introduced.

[403] “Research in Family Mediation,” Mediation Quarterly (Fall 1995) vol 13(1) 53, at 73.

[404] Another writer has commented that: “The availability of an effective alternative and a user friendly process may also have the effect of making lawyers more responsible and accountable in examining their own procedures and in effecting improvements.” see Finlay, “Family Mediation and the Adversary Process,” Australian Journal of Family Law (1993) vol 7(1), 63, at 69.

[405] Summarised in Boshier, “New Zealand Family Law Report,” Family and Conciliation Courts Review (Apr 1995) vol 33 (2) 182-193.

[406] Same as above, at para 11.5.4.

[407] That report had recommended a separate and distinct Family Conciliation Service working alongside the judicial branch of the Family Court.

[408] Boshier (1995), above, at para 12.5.2.