Hong Kong Law Reform Commission

Chapter 6 - Recommendations for reform – Family mediation services generally

• Introduction
• Training of mediators
• Accreditation
• Social welfare officers and mediation
• Other professions and mediation
• Experts' reports
• Privilege and confidentiality
• Immunity from liability
• Legal advice
• Legal aid and mediation
• Child’s voice in the mediation process
• Arrangements for children
• Parenting plans
• Enforcement of mediation agreements
• Community mediation
• Approving community mediation

Introduction

6.1 In the previous chapter, we outlined our recommendations on court based support services to facilitate family mediation in Hong Kong. We noted that a number of our earlier recommendations in this area had been implemented with the establishment of the Pilot Scheme on Family Mediation at the Family Court.

6.2 In this chapter, we focus on our more general recommendations related to the role of mediators. The objective of these recommendations is to ensure that mediation here operates in accordance with clear guidelines and adequate resources, so that the integrity of the process and the quality of services will be maintained.[409]

Training of mediators

6.3 In the New Zealand context, the Boshier report recommended that mediation should be assured of a high profile in the Family Court system by an insistence on “high standards of selection, training, supervision and accreditation of mediators and ongoing accreditation requirements.”[410]

6.4 We observed in the Consultation Paper that we agreed with the emphasis of the Boshier report, and recommended that high standards of selection, training, supervision and accreditation should be required of family mediators participating in any mediation scheme operating through the Family Court.[411]

6.5 During our consultation exercise, all of the responses which referred to these recommendations expressed support for them.

Accreditation

6.6 The Hong Kong Mediation Council, (formerly known as the ”Mediation Group”) of the Hong Kong International Arbitration Centre has approved a system of accreditation for qualified family mediators. A panel of such mediators is now established.[412] It is hoped that all qualified family mediators, whether private, community mediators or mediators from the Social Welfare Department will be accredited by this system to ensure the consistency and quality of standards. Having this system approved by government and the Judiciary would make it easier for agencies to receive government funding or subvention.

6.7 We therefore recommended in the Consultation Paper that the current system of accreditation of qualified family mediators should be approved by government and the Judiciary.[413] This recommendation was supported by all of the respondents who commented in this area.

Social welfare officers and mediation

6.8 In our Consultation Paper, we observed that, following the advent of mediation services through the Family Court, there was a need to clarify the roles of social welfare officers in order to avoid confusion between their original investigative role and the new role of mediator if performed by a social welfare officer.[414] We noted that the role of the social welfare officer as investigator or expert to the court is separate from a counselling or mediation role. We therefore recommended that social welfare officers who were professionally qualified mediators participating in the mediation service operating through the Family Court should be separate from the social welfare officers who carry out the service of executing social investigations and preparing reports for the courts.[415] We also recommended that the Social Welfare Department should establish appropriate guidelines to separate these functions.

6.9 On consultation, all but one of the respondents who commented on this recommendation supported it. The respondent who objected appeared to assume that the recommendation advocated that social welfare officers should simultaneously fulfil two distinct functions, one as investigators or experts to the court, the other as mediators. To clarify, the intent of our recommendation was that those social welfare officers who acted as investigators or court experts should not act as mediators.

Other professions and mediation

6.10 Equally, a qualified mediator should not embark on counselling the client, or otherwise engage in therapeutic tasks, as there will be a confusion of roles. There also needs to be a clear separation of function between a lawyer acting as a mediator and acting in the capacity of a solicitor or barrister.

6.11 We recommended in the Consultation Paper[416] that other professionals involved in counselling or therapy, whether working in government or non-governmental agencies, or privately, should adopt similar guidelines. We also recommended that the Law Society and the Bar Association should draw up appropriate guidelines to ensure the separation of the roles of lawyers acting as lawyers from lawyers acting as mediators.

6.12 On consultation, all of the respondents who commented on these recommendations expressed support for them.

Experts' reports

6.13 The New Zealand Boshier report recommended that, in difficult cases, some means of obtaining specialist input from psychologists or senior social workers, while a mediation was ongoing, might be needed.[417] This would be “to help the parties focus on the needs and wishes of the children”[418] and might assist in settlement.

6.14 We therefore recommended in the Consultation Paper that family mediators should have access to facilities to obtain an expert’s report, with the parties’ consent, to assist in difficult cases concerning disputes over children.[419] This recommendation was widely supported on consultation.

Privilege and confidentiality

6.15 “Privilege” is the right of a party to prevent statements or documents being brought into evidence. The Law Commission of England and Wales recommended that a statutory privilege should be conferred on statements made during mediation.[420] The Law Commission proposed that statements made which indicated a risk of harm to a child would be privileged but not confidential.[421]

6.16 In 1993, the Court of Appeal in England recognised that mediation,[422] though not forming part of the legal process, was, as a matter of practice, “becoming an important and valuable tool in the procedures of many Family Courts.” [423] Thus, there was great importance in the “preservation of a cloak over all attempts at settlement of disputes over children.” [424]

6.17 The view was expressed that mediation would not work unless the parties approached the process in an open manner, prepared to give and take, and make admissions and gestures to reach an accord. If instead the “parties remain in their entrenched positions, no armistice will be reached in no man’s land.”[425] Mediation could not be successful unless the parties could conduct the meeting off the record. The parties must be “confident that their concessions and admissions cannot be used as weapons against them if [mediation] fails and full-blooded litigation follows.”[426]

6.18 This form of privilege is similar to the rule that communications made “without prejudice” protect communication made in a bona fide attempt to negotiate a dispute.[427] However, it is actually a privilege derived from the principle that, “where a third party receives information in confidence with a view to conciliation, the courts will not compel him to disclose what was said without the parties’ agreement.”[428] This was then a new category based on the public interest in the stability of marriage.

6.19 The English Court of Appeal concluded that:

“evidence may not be given in proceedings under the Children Act 1989 of statements made by one or other of the parties in the course of meetings held or communications made for the purpose of conciliation save in the very unusual case where a statement is made clearly indicating that the maker has in the past caused or is likely to cause serious harm to the well-being of a child .... [A trial judge] will admit it ... only if, in his judgment, the public interest in protecting the interests of the child outweighs the public interest in preserving the confidentiality of attempted conciliation.”[429]

6.20 The Hong Kong Court of Appeal gave some support to mediation and conciliation when it held in W v W[430] that the evidence given by a psychologist as a mediator and conciliator about the relationship between the spouses was privileged.

6.21 The term “privilege” is used in the sense that a person has the right in certain circumstances to withhold information from a court. The term “confidentiality” is used in the sense that a communication or information is recognised in law as being a ground for claiming privilege before the court. Confidentiality is essential in mediation to protect the integrity of the process, the parties’ interests and to encourage settlement through full disclosure. The Code of Practice adopted by the Hong Kong Mediation Council, Guidelines for Professional Practice of Family Mediators, imposes an obligation of confidentiality on the mediator to protect the information revealed by parties in the mediation process, except in certain defined circumstances.[431] It also indicates that the mediator will claim privilege if he or she is summonsed to attend court.

6.22 The Law Commission of England and Wales recommended that a statutory privilege should be conferred on statements made during conciliation procedures. Statements made which indicated a risk of harm to a child would be privileged but not confidential.[432] The Civil Evidence (Family Mediation) (Scotland) Act 1995 provides for the inadmissibility of evidence as to what occurred at a family mediation conducted by accredited family mediators.[433]

6.23 Various countries provide in primary or subsidiary legislation or practice directions for privilege for settlement or conciliation conferences.[434] As noted above, there is also a common law privilege based on the public interest in the stability of marriage.[435] The Hong Kong Court of Appeal held in W v W[436] that the evidence given by a psychologist as a mediator and conciliator about the relationship was privileged.[437]

6.24 There are precedents in Hong Kong for statutory privilege. Part II of the Labour Relations Ordinance (Cap 55) provides for conciliation to resolve employment disputes. If the dispute is not settled, a conciliation officer shall make a report to the Commissioner, setting out the facts agreed between the parties and those that appear to be in dispute.[438] The Commissioner can then refer the dispute to a special conciliation officer who is a senior officer of the labour relations division. Section 9 of the Ordinance provides privilege to the communications:

“anything communicated to a conciliation officer or special conciliation officer in connection with the performance of his functions under this ordinance shall not be admissible in evidence in any proceedings before an arbitration tribunal or board of inquiry, except with the consent of the person who communicated it to the conciliation officer or special conciliation officer.”

6.25 Section 80(6) of the Disability Discrimination Ordinance (Cap 487) provides that:

“Evidence of anything said or done by any person in the course of conciliation under this section (including anything said or done at any conference held for the purposes of such conciliation) is not admissible in evidence in any proceedings under this Ordinance except with the consent of that person.”[439]

6.26 For the removal of doubt, we recommended in the Consultation Paper the introduction of a statutory provision giving privilege to all qualified family mediators similar to that provided in the Civil Evidence (Family Mediation) (Scotland) Act 1995.

6.27 On consultation, all of the responses we received on this recommendation indicated general support for it, but reservations were expressed by some consultees regarding the extent of client confidentiality and privilege in cases where child abuse came to light. We took careful note of this concern and reviewed the terms of our original recommendation. In particular, we looked again at the model proposed by the English Law Commission.

6.28 It was noted that the English Law Commission had recommended that statements made during the course of a mediation process should be privileged;[440] they had added a specific rider, however, that statements made which indicated a risk of harm to a child should be privileged but not confidential.[441] Consequently, in cases where a mediator came to learn that a child was being abused, and one or both parties to the mediation wanted to keep this information confidential, the mediator would be entitled to report the abuse to the relevant authorities.

6.29 This would not mean, however, that the mediator could subsequently be compelled to give evidence about the matter in court. The Commission noted that in practice, once the information was passed to the authorities, an investigation would take place and it was upon that, rather than the initial referral, that any subsequent proceedings would be based.[442] The Commission concluded that:

"It is a matter of judgment whether the welfare of the child would be better protected by compelling the [mediator] to give evidence in such proceedings or by the greater frankness which an absolute privilege would encourage during the conciliation or mediation process. ... We consider that, on balance, the welfare of any children would be better protected by an absolute privilege, given that the codes of practice of the relevant professionals include a provision to the effect that confidence will not be maintained in respect of matters relating to protection of children, such as allegations of abuse."[443]

6.30 In this context, we note that, included in the standard-form Agreement to Mediate for the Hong Kong Pilot Scheme on Family Mediation at clause 5(e) is the statement that:

"The Mediator shall keep confidential all information and/or documents given to him/her during the course of mediation unless such information discloses an actual or potential threat to human life or safety."

6.31 There is also a statement in the Hong Kong Guidelines for Professional Practice of Family Mediators – Code of Practice, at clause VI(c)(ii), that one of the exceptions to the confidentiality duty normally imposed on mediators is:

"When the information discloses an actual or potential threat to human life or safety. Any information divulged shall be limited to what is absolutely necessary."

6.32 Having reconsidered our earlier position in this area in the light of concern expressed by some of our consultees, we are now of the view that an approach along the lines of the English Law Commission's recommendations is generally to be preferred. As noted earlier, the Commission recommended that a statutory privilege should be conferred upon statements made by parties during the course of the mediation process; however statements which indicated a risk of harm to a child should be privileged but not confidential. We consider that this approach strikes a suitable balance between, on the one hand, preserving the integrity of the mediation process and promoting full disclosure between the parties to advance settlement, and, on the other, protecting children and others from threats to their safety.

Immunity from liability

6.33 Many Australian statutes provide immunity and protection from civil liability to mediators operating in court annexed mediation schemes or government agencies. The justification for providing this is that it may hinder the development of mediation if a mediator could be sued for negligence.[444] It is also assumed that mediators attached to a court or approved organisation comply with certain standards of quality and accountability which reduce the chance that they will be sued. Section 19M of the Australian Family Law Act 1975 provides:

“A family and child mediator... has, in performing the functions of such a mediator... the same protection and immunity as a Judge of the Family Court has in performing the functions of such a Judge.”

6.34 We therefore recommended in the Consultation Paper[445] that a provision granting immunity along similar lines to section 19M of the Australian Family Law Act 1975 should be introduced to protect qualified family mediators. All of the respondents who commented on this recommendation during the consultation exercise supported it.

Legal advice

6.35 Under Order 25A, Rule 12, of the Australian Family Law Rules, the mediator is required to advise the parties that they should obtain legal advice as to their rights, duties and obligations at the commencement of the mediation process, and at any other time if the mediator considers it appropriate. This advice should also be given at the conclusion of mediation and before any agreement becomes legally binding.

6.36 We recommended in our Consultation Paper that a provision along the lines of Order 25A, rule 12 of the Australian Family Law Rules should be adopted in Hong Kong.[446] This proposal was supported by all of the respondents who commented on it during consultation.

Legal aid and mediation

6.37 We noted in our Consultation Paper[447] that the English Family Law Act 1996 included statutory authority for the Legal Aid Board (now the Legal Services Commission) to provide mediation services. The Act also provided that legal aid for representation would not be granted unless the person had attended a meeting with a mediator to determine the suitability of mediation.

6.38 In our Consultation Paper[448] we recommended that there should be statutory provision for legal aid to be made available for mediation of guardianship, custody and access disputes in Hong Kong. Legal aid in Hong Kong is currently available only in respect of the provision of legal representation in any proceedings,[449] and we are aware that our proposal to extend legal aid to mediation therefore represents a change in the underlying basis for the legal aid scheme. In our view, however, this would promote early settlement between parties and would potentially have a positive impact on that large part of the legal aid budget which is currently spent on family disputes.[450] In contrast to the approach followed in England, however, we do not propose that legal aid should be denied if mediation has not been attempted.

6.39 We further recommended in our Consultation Paper that, once that legislation was enacted, the Legal Aid Department should establish a proper scheme for the funding of family mediation which would include education, publicity and screening of potential cases.

6.40 On consultation, all of the respondents who commented on this recommendation expressed support for it. We note the reservation of one consultee, however, that funding mediation through legal aid would have significant cost and resource implications, and that the determination of this issue should, in any event, await the outcome of the Pilot Scheme on mediation at the Family Court. We note these comments but remain of the view that mediation should be legally-aided.

Child’s voice in the mediation process

6.41 One writer has observed that, in New Zealand, the majority of custody, access and guardianship disputes were resolved by counselling and mediation and yet there was no legal requirement for the child’s views to be taken into account in these processes.[451] Obtaining the child’s views could be done directly, by the mediator interviewing the child, or indirectly, by another worker interviewing the child. It was noted that there were special protocols that needed to be drawn up as to the appropriateness of interviewing the child, and in what circumstances.[452]

6.42 Another writer has outlined the goals of giving attention to the child’s voice as:

1. bringing the child into focus for family decision-making;
2. obtaining input from the child relevant to parental decisions;
3. providing impartial clarification and education for the child as needed; and
4. providing feedback to parents as the voice of the child.[453]

6.43 We noted in our Consultation Paper the mechanisms for listening to the views of the child in the litigation process. In particular, section 11(7) of the Children (Scotland) Act 1995 provided that the court:

“taking account of the child’s age and maturity, shall so far as practicable

(i) give him an opportunity to indicate whether he wishes to express his views;
(ii) if he does so wish, give him an opportunity to express them; and
(iii) have regard to such views as he may express”.[454]

6.44 We therefore recommended[455] the adoption of a provision on the lines of an amended section 11(7) of the Children (Scotland) Act 1995, to provide a mechanism for considering the children’s views in the mediation process. We also recommended that consideration be given to what mechanisms were needed to determine the child’s views, so that these could be brought to the mediator’s attention.

6.45 All of the responses on these recommendations during the consultation exercise were in support of them.

Arrangements for children

6.46 We considered in our Consultation Paper that it was necessary to set out how mediation agreements or parenting plans would fit into the existing court process.[456] A divorce petition and a statement as to the arrangements for the children,[457] which are filed in the court, are subject to the scrutiny of the judge to ensure compliance with section 18 of the Matrimonial Proceedings and Property Ordinance (Cap 192). A decree absolute cannot be made without the court being satisfied of these arrangements.

6.47 We proposed that the court would look at the mediation agreement or parenting plan and the statement as to the arrangements for the children. The procedure would be similar to dealing with a consent order or decree, and in fact, the mediation agreement may well be attached to a draft consent order. The parties would attend the court and the judge would ask them questions if he was not happy with the arrangements. The judge has a discretion to refuse to agree to the arrangements. This is reassuring to those who are concerned that parties may enter into arrangements in mediation or into parenting plans that do not meet the best interests of the children.

6.48 We therefore recommended in the Consultation Paper that rules of court should facilitate mediation agreements being converted into consent court orders.[458] We noted that this should assist both compliance with the terms of the agreement, and its enforcement in the event of the arrangements breaking down.

6.49 On consultation, all of the respondents who commented on this recommendation expressed support for it.

Parenting plans

6.50 In Washington State, a standard parenting plan form must be completed dealing with parental responsibility for the child’s school year, holidays, birthdays and other major events.[459] Decision-making in the areas of education, religion and medical decisions must be outlined. In addition, parents must indicate which choice of dispute resolution they wish to adopt if there are future conflicts. This includes litigation, mediation and counselling.

6.51 Section 63C(2) of the Australian Family Law Act 1975, as inserted by the 1995 amendments, provides that a parenting plan may deal with residence (custody), contact (access), and maintenance of a child, and any other aspect of parental responsibility for a child. These plans are specifically tailored to the needs of a particular family and can then be registered with the court. This is a preferable form of dispute resolution to the traditional order which gives custody to the mother with a vague “reasonable access” clause in favour of the father, even if the order is by consent. The parenting plans can be drawn up by a mediator, counsellor, social welfare officer or solicitor.

6.52 We consider that the shift away from parental rights and adversarial processes and terms, to parental responsibility and more humanistic processes such as parenting plans, should be encouraged in Hong Kong for the best interests of the child. We therefore recommended in the Consultation Paper[460] the adoption of a provision for parenting plans which could be registered in the Family Court, similar to the provisions of the Australian Family Law Reform Act 1995. In favouring the Australian model, we prefer a more generally worded provision introducing parenting plans, to allow greater flexibility to the parties to tailor their parenting plan to suit their own situation. We think the Australian approach achieves this more readily than the Washington model. We noted in the Consultation Paper that a section 18 declaration under the Matrimonial Proceedings and Property Ordinance (Cap 192) would still be made which could have the parenting plan attached. We added that parenting plans should be encouraged, and there should be a grace period when they would be voluntary. We noted that they should only become mandatory at a later stage to ensure their use on a more extensive basis.

6.53 On consultation, the majority of respondents who commented on this recommendation expressed support for it. One respondent expressed the view that the use of such plans might promote expensive litigation where parties were hostile. Another respondent agreed that the plans should be introduced, but contended that there should be no grace period. We note these comments.

Enforcement of mediation agreements

6.54 Mediation is increasingly being used as an alternative way of resolving custody and access disputes when parties divorce, or when arrangements may need to be varied after the divorce as the children grow older.[461] Mediation is not legally binding unless the terms are incorporated into an agreement which can then be treated as binding provided there was independent legal advice given and no pressure was exerted by one party on the other. The memorandum of agreement should be clear as to whether it is binding on the parties or not, to avoid any subsequent dispute on this issue.[462] Also, the agreement to mediate may have provided that any agreement reached in mediation would not be binding unless reduced to writing and signed by the parties. In some agreements there may be a provision that the parties should obtain independent legal advice, and thereafter agree to be bound.[463] In addition, the mediation agreement can be incorporated into a court order by consent. It is useful if an agreement contains a clause setting out a procedure for enforcement if one of the parties were to default in complying with the agreement or order.

6.55 Any arrangements made by the parties in respect of a child, however, cannot be treated as legally binding without the court’s approval under section 18 of the Matrimonial Property and Proceedings Ordinance (Cap 192). In reality, the court is unlikely to interfere with an agreement by the parties unless it appears to be against the welfare of the child. In particular, the court would regard any custody or access arrangements, whether contained in a mediation agreement, consent order, or other order, as being capable of variation if the interests of the child required it.

6.56 If there are future disagreements about the interpretation of the consent order, the court will resist setting aside an agreement reached freely by the parties. The parties cannot appeal the consent order but must apply to have it set aside on the ground of variation of circumstances or duress or fraud. Godfrey J, in the Court of Appeal in W v W stated that:[464]

“The court will treat a formal agreement, properly and fairly arrived at with the benefit of competent legal advice, as one which should be given effect to unless good and substantial grounds are shown for concluding that injustice would be done by holding the parties to its terms.”

6.57 He referred to the situations where the court would examine the state of mind of the parties when they reached the agreement:

“[Undue] pressure by one side, exploitation of a dominant position to secure an unreasonable advantage, inadequate knowledge, possibly bad legal advice, an important change of circumstances, unforeseen or overlooked at the time of reaching agreement, are all relevant to the question of justice between the parties”.[465]

6.58 Concern has been expressed by lawyers about parties entering into mediation agreements without legal advice. The Court of Appeal in W v W[466] confirmed that it would normally give effect to an agreement fairly arrived at which had the benefit of competent legal advice, unless there were substantial grounds for concluding that injustice had been done.

6.59 It has been suggested that parties who reach a mediation agreement without the benefit of independent legal advice risk having the court set the agreement aside unless there were to be amendments introduced to section 14 of the Matrimonial Proceedings and Property Ordinance (Cap 192).[467] Section 14 provides that a provision in a maintenance agreement restricting the right to apply to court for an order concerning financial arrangements, is void. In fact, section 15 of the Ordinance gives the court power to alter the maintenance agreement.

6.60 We take the view that care needs to be taken in the drafting of mediation agreements concerning financial arrangements so that it does not appear that the jurisdiction of the court is being ousted. We do not see the need to amend section 14 of the Ordinance, however, and we have already recommended that parties should be encouraged to obtain independent legal advice before completing a mediation agreement.

6.61 We therefore noted in the Consultation Paper that we did not see the need to amend section 14 of the Matrimonial Proceedings and Property Ordinance (Cap 192). On consultation, all the respondents who commented on this recommendation expressed support for it, except for one respondent who submitted that section 14 should be amended for the avoidance of any doubt regarding the enforcement of mediation agreements.

Community mediation

6.62 The Social Welfare Department provides family services through 42 family service centres and there are at least 23 such centres in the non-government sector. There are 19 family activity and resource centres within existing community centres. They are an initial contact point for families. The family service centres and family activity and resource centres should publicise the availability of mediation services. Some family service centres (in both sectors) should be designated to provide mediation services to assist the resolution of family conflict before approaches are made to court and the conflict has become entrenched. Until mediation becomes well known it may be more appropriate to attach it to these centres which already provide counselling to families, who can then be a source of referral.

6.63 When a family relationship is in crisis, the legal system may be resorted to because it is perceived to be either the most appropriate or the only service available. More publicity and education of the public is therefore needed to encourage families to seek assistance from local family service centres at an early stage of conflict, or when problems are first encountered. These local centres would be staffed, inter alia, with professionally qualified mediators who would not provide the counselling services offered by the centre. This would assist the resolution of family conflict before approaches were made to court.

6.64 We therefore recommended in the Consultation Paper that community based family mediation services should be available to the public and that there should be more publicity and education to encourage early referral to such services. On consultation, all of the respondents to this recommendation expressed support for it.

Approving community mediation

6.65 The Australian Family Law Reform Act 1995 provided a mechanism for community based counselling and mediation organisations to become approved organizations under the Family Law Act 1975. Section 13E places a duty upon the minister to publish a list of approved organizations.

6.66 We therefore recommended in the Consultation Paper the enactment of legislative provisions similar to the provisions in the Australian Family Law Reform Act 1995, which provided a mechanism for community based counselling and mediation organisations to become approved organizations. We recommended that a similar scheme should be established in Hong Kong with funding provided by Government to approved organisations. The Government would work in partnership with such organisations with regard to the quality of the service, continuing supervision and training of the mediators and other relevant matters. These recommendations were supported by all of the respondents who commented in this area.

[409] See: New South Wales Law Reform Commission, Alternative Dispute Resolution: Training and Accreditation of Mediators (1991: Report No 67), at 70.

[410] As summarised in Boshier, “New Zealand Family Law Report,” Family and Conciliation Courts Review (Apr 1995) vol 33 (2) 182-193, at para 5.7.7.

[411] HKLRC Sub-committee on Guardianship and Custody, Consultation Paper: Guardianship and Custody (Dec 1998), at paras 12.111 and 15.117.

[412] As at October 2002, there were 94 accredited mediators on the HKIAC Family Panel: see list appearing at http://www.hkiac.org/enpanelam2.html.

[413] Same as above, at paras 12.112 and 15.118.

[414] Same as above, at para 12.92.

[415] Same as above, at paras 12.94 and 15.110.

[416] Same as above, at paras 12.96 and 15.111.

[417] Boshier (1995), above.

[418] Same as above, at para 5.7.9.

[419] HKLRC Sub-committee on Guardianship and Custody (1998), at paras 12.97 and 15.112.

[420] The English Law Commission used the term "conciliation": see Family Law; Ground of Divorce; (Law Com No 192: 1990), at para 5.29.

[421] Same as above, at paras 5.29 to 5.48.

[422] Again, the term "conciliation" was used: see In re D (Minors) [1993] 2 WLR 721, at 728.

[423] Same as above.

[424] Same as above.

[425] Same as above, at 724, per Sir Thomas Bingham.

[426] Same as above.

[427] Rush & Tompkins Ltd v Greater London Council [1989] AC 1280, at 1299G.

[428] Sir Thomas Bingham in In re D, above, at 726, relying on McTaggart v McTaggart [1949] P 94 and D v NSPCC [1978] AC 171.

[429] Same as above, at 729.

[430] [1994] 1 HKC 430. In that case, the wife had waived her privilege by referring to opinion and advice contained in the conciliator’s affidavit. Nonetheless, the Court considered that the court below should not have heard the evidence from the conciliator without the clear and unequivocal agreement of both parties. The court confirmed that the privilege given to conciliation in matrimonial cases was a privilege based on the public interest in the stability of marriage and needed to be protected. Accordingly. the court ordered the editing of the affidavit.

[431] This is where the information discloses an actual or potential threat to human life or safety.

[432] Law Commission of England and Wales, Family Law, Grounds of Divorce (1990: Law Com No 192), at paras 5.29 to 5.48.

[433] It implemented a Scottish Law Commission report, Report on Evidence: Protection of Family Mediation (1992: Scot Law Com No 136).

[434] Section 18 of the New Zealand Family Proceedings Act 1980 and section 19N of the Australian Family Law Act 1975 provide privilege for conciliation conferences. See the English Practice Direction (Family Division: Conciliation Procedure) [1982] 1 WLR 1420. In Ontario, Newfoundland, the Yukon, Quebec and Saskatchewan, legislation protects the confidentiality of disclosures made during mediation by a court-appointed mediator from admission in evidence without the consent of the parties.

[435] Sir Thomas Bingham in the case of In re D (Minors), above, at 726.

[436] [1994] 1 HKC 430.

[437] This was in reliance on In re D (Minors), above.

[438] Labour Relations Ordinance (Cap 55), section 4.

[439] This is similar to Section 84(6) of the Sex Discrimination Ordinance (Cap 480).

[440] Law Commission of England and Wales (1990), above, at para 5.44.

[441] Same as above, at para 5.48.

[442] Same as above.
[443] Same as above.

[444] Boulle, Mediation: Principles, Process, Practice (1996) 254.

[445] HKLRC Sub-committee on Guardianship and Custody (1998), at paras 12.136 and 15.126.

[446] Same as above, at paras 12.137 and 15.127.

[447] HKLRC Sub-committee on Guardianship and Custody (1998), above, at paras 8.22-8.24.

[448] Same as above, at paras 12.128 and 15.124.

[449] See section 6, Legal Aid Ordinance (Cap 91).

[450] As we note in Chapter 2, fnote 3, above, in 2000-2001, approximately one-third ($144 million or 36%) of the total civil legal aid cost was spent on about 5,000 disputed and non-disputed matrimonial cases: see Hong Kong Polytechnic University, Evaluation Study on The Pilot Scheme on Family Mediation: Interim Report (Apr 2002), at para 5.

[451] Henaghan, “The 1989 United Nations Convention on the Rights of the Child”, “Rights and Responsibilities,” Papers from the International Year of the Family, Symposium on Rights and Responsibilities of the Family (Wellington, Oct 1994) 32, at 36.

[452] Kelly, “The Voice of Children in the Mediation Process,” notes from a Pre-Conference Workshop of the Second International Mediation Conference, Adelaide, January 1996.

[453] Same as above.

[454] Section 11(7) of the Children (Scotland) Act 1995.

[455] HKLRC Sub-committee on Guardianship and Custody (1998), above, at paras 12.126 and 15.123.

[456] Same as above, at paras 12.140-12.142.

[457] Form 2B as provided for in rule 9(3) of the Matrimonial Causes Rules.

[458] HKLRC Sub-committee on Guardianship and Custody (1998), above, at paras 12.142 and 15.129.

[459] Tompkins, “Parenting Plans - A Concept Whose Time Has Come,” Family and Conciliation Courts Review (Jul 1995) vol 33(3), 286, at 296.

[460] HKLRC Sub-committee on Guardianship and Custody (1998), above, at paras 12.147 and 15.130.

[461] See: 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).

[462] Brown and Marriott, ADR Principles and Practice (1993), at 378.

[463] The English Family Mediators Association agreement is similar to this provision.

[464] [1994] 1 HKC 430, at 437 (CA).

[465] Lord Justice Ormrod in Edgar v Edgar [1980] 1 WLR 1410, at 1417.

[466] [1994] 1 HKC 430.

[467] This was in a submission by the Law Society to the Hong Kong International Arbitration Centre when it proposed establishing a family mediation service in 1992: see “Family mediation proposed,” The New Gazette (July 1992).