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Vol 23 No 11 Nov/Dec 2018

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Mediation and ADR Confidentiality in Hong Kong


ISBN13: 9780854902644
To be Published: January 2019
Publisher: Wildy, Simmonds and Hill Publishing
Country of Publication: UK
Format: Hardback
Price: £65.00



It is generally accepted in Hong Kong and many other jurisdictions that mediation is ‘confidential’. This book examines the three non-statutory components of mediation confidentiality in Hong Kong:-

  • contractual or equitable confidentiality;
  • the without prejudice doctrine;
  • and legal professional privilege – together with the Hong Kong Mediation Ordinance.
This study looks at the protection which each of the components and the Ordinance affords to the participants in mediation and the deficiencies in the same.

The author argues that the justification for a specific mediation confidentiality may be found in the very nature and philosophy of mediation itself and, in particular, its distinctive empowerment of the parties and its independence from the litigation process. It is contended that, to the extent that they share these qualities, other forms of ADR should be similarly protected.

This book will interest and be useful to academics, students and legal practitioners interested in mediation and ADR in Hong Kong and elsewhere.

The thesis upon which this book is based was awarded the University of Hong Kong’s prestigious Li Ka Shing Prize.

Gary Meggitt MA (Oxon), MPhil (HKU), ACII, MCIArb, Associate Professor, The Faculty of Law, The University of Hong Kong. His research interests include ADR, insurance law, civil litigation and professional liabilities.

Subjects:
Other Jurisdictions , Wildy, Simmonds and Hill, China, Arbitration and Alternative Dispute Resolution
Contents:
Acknowledgment
Table of Contents
Table of Figures
Table of Cases;
Table of Statutes

Preamble – Mediation, Confidentiality and Privilege

Chapter 1 – An introduction to ADR and mediation
1.1 ADR - A general definition
1.2 ADR in Hong Kong
1.3 Individual ADR Processes
1.4 Mediation – history and current practice
1.5 The ‘philosophy’ of mediation
1.6 ADR v Litigation

Chapter 2 – What is mediation and ADR privilege?
2.1 The nature of the ‘Privilege’
2.2 The distinction between ‘confidentiality’ and ‘privilege’
2.3 Confidentiality
2.4 Privilege
2.5 The Without Prejudice Doctrine
2.6 Rights, balancing exercises and shortcomings

Chapter 3 – The justification for mediation privilege
3.1 The justification
3.2 Approaches across the ‘common law world’
3.3 The Wigmore Test
3.4 Abuses and safeguards
3.5 Mediation - a distinct and independent process
3.6 Justifying privilege

Chapter 4 – The application of mediation and ADR privilege
4.1 How issues of ‘privilege’ may arise
4.2 Mediation
4.3 Arbitration
4.4 Adjudication
4.5 Expert Determination
4.6 Early Neutral Evaluation
4.7 Inconsistency and neglect

Chapter 5 – The Mediation Ordinance and comparable legislation
5.1 Hong Kong
5.2 The United States
5.3 Australia
5.4 England & Wales
5.5 UNCITRAL Model Law;
5.6 Mediation – first among equals?

Chapter 6 – Conclusions
6.1 What makes ADR distinctive from litigation and mediation distinctive from other ADR processes
6.2 The principles underlying mediation ‘confidentiality’ and ‘privilege’
6.3 The justification for mediation privilege and mediators’ privilege
6.4 Does this justification and these principles apply equally to other forms of ADR
6.5 Do the principles provide adequate practical protection for mediation and other forms of ADR
6.6 The protection of confidentiality and privilege under the Mediation Ordinance
6.7 What other legislative or regulatory provisions are required in order to provide adequate protection of mediation and ADR privilege and confidentiality
6.8 Rebuilding the ‘multi-door courthouse’

Appendices
I. Hong Kong Mediation Ordinance (Cap 620)
II. Hong Kong Practice Direction 31
III. Hong Kong Mediation Code
IV. Hong Kong Law Society’s Sample Mediation Agreement and Rules
V. RHC Order 1A
VI. EU Mediation Directive
VII. Uniform Mediation Act;

Bibliography/References

Series: Law in East Asia

Transparency Challenges Facing China 1st ed ISBN 9780854902606
To be published January 2019
Wildy, Simmonds and Hill Publishing
£65.00
Re-Ordering Hong Kong: Decolonisation and the Hong Kong Bill of Rights Ordinance ISBN 9780854902309
Published September 2017
Wildy, Simmonds and Hill Publishing
£65.00
Mediation in Contemporary China: Continuity and Change ISBN 9780854902248
Published March 2017
Wildy, Simmonds and Hill Publishing
£65.00
Manufactured Obscurity: The Postcolonial Erasure of Suzerainty and the Changing Legal Status of Tibet ISBN 9780854901692
Published September 2015
Wildy, Simmonds and Hill Publishing
£65.00
The Evolution of the Land System in China: Politicized Law? ISBN 9780854901432
Published January 2015
Wildy, Simmonds and Hill Publishing
£65.00
The Revival of Private Property and Its Limits in Post-Mao China ISBN 9780854901333
Published January 2014
Wildy, Simmonds and Hill Publishing
£65.00
Traditional Chinese Penal Law ISBN 9780854900930
Published August 2013
Wildy, Simmonds and Hill Publishing
£65.00
China's Pre-Trial Justice: Criminal Justice, Human Rights and Legal Reforms in Contemporary China ISBN 9780854901036
Published January 2012
Wildy, Simmonds and Hill Publishing
£65.00
Corporate Governance and Legal Reform in China ISBN 9780854900367
Published March 2009
Wildy, Simmonds and Hill Publishing
£65.00
British Rule in China: Law and Justice in Weihaiwei 1898-1930 ISBN 9780854900268
Published August 2008
Wildy, Simmonds and Hill Publishing
£45.00
China's Psychiatric Inquisition: Dissent, Psychiatry and the Law in Post-1949 China ISBN 9781898029854
Published October 2006
Wildy, Simmonds and Hill Publishing
£65.00
Implementation of the WTO Agreements in China ISBN 9781898029793
Published October 2005
Wildy, Simmonds and Hill Publishing
£65.00