In a previous posting I looked at Hong Kong’s new Mediation Ordinance, which came into force on 1 January 2013. This legislative activity comes hot on the heels of a major revision of the Hong Kong Arbitration Ordinance which came into effect in 2011.
Given the increasing interest in multi-tiered dispute resolution (MDR) processes such as med-arb and arb-med-arb, I thought it would be useful to consider the application of these two ordinances to MDR practice in Hong Kong.
The Arbitration Ordinance (AO)
One of the underlying intentions of the revised AO was to encourage the use of:
• med-arb where a mediator is appointed to try to resolve the dispute before arbitral proceedings are comme [...]
Well, the New Year is a time for reflections, making new resolutions and fresh starts. In Hong Kong the 1st of January 2013 saw a fresh start for the mediation regulatory regime with the coming into force of the Mediation Ordinance (MO), which I wrote about last month.
But it’s not just the MO, which is likely to inject anticipation and activity into the mediation landscape in Hong Kong in 2013. A new mediator accreditation regime is on it’s way …
You see it all started in 2008 with the Working Group on Mediation, chaired by the then Secretary for Justice Wong Yan Lung. A cross sector body, the Working Group comprised representatives from the DOJ, the Judiciary, the Legal Aid depart [...]
In June 2012 the Hong Kong Legislative Council passed the Mediation Ordinance (MO), the first piece of legislation on mediation in Hong Kong SAR. The MO was a much awaited and highly anticipated law and some mediation advocates have been disappointed in what they see as much ado about nothing. After all the MO appears as a very thin document containing only 11 provisions.
However the MO must be seen as part of Hong Kong’s broader mediation landscape. As a member of the Mediation Taskforce that was responsible for the content of the MO, I can report that the Ordinance was the subject of serious international research and deliberation. It forms the pivotal piece of a broader legal landscape [...]
In this posting I want to reflect on how, as a mediator, I’ve learnt much from the related but independent conflict management process, called conflict coaching. Before I get ahead of myself, however, let me start by offering an explanation of conflict coaching.
Conflict coaching is a service provided by a conflict specialist to a person who is, or may in the future be, involved in conflict. According to the REAL Conflict Coaching model, coaches assist clients to develop the 5 Cs:
CLARITY: Gain clarity about the conflict situation;
COMPREHENSION: Understand their own, and the other person’s, needs and goals;
CHOICES: Identify and evaluate their choices for moving forward;
Geoff Sharp’s recent blog posting, Biased is better and Partiality is In, challenges the conventional mediation wisdom that views impartiality and neutrality as hallmarks of the mediation process. Here impartiality refers to a disinterestedness in the outcome of the dispute and the absence of real and perceived conflicts of interest in relation to the matter. I’d like to pick up on some of Geoff’s comments and extend the conversation in relation to historical and cross-cultural perspectives.
Historically mediators have used diverse approaches to intervene in conflict. At the turn of the last century, German sociologist Georg Simmel identified the ubiquitous role of the mediator, someti [...]
One year ago, on the 1 September 2012, The Kluwer Mediation Blog was launched with an inaugural posting by the then Minister for Justice in Slovenia, Ales Zalar.
Right from the start, Ales challenged readers by offering fresh thinking about political applications of mediation: “Mediation stands for more democracy, which we all need, because it understands that interests are the ones that drive conflicts in our daily life.”
Since then the Blog’s regular and guest bloggers have continued to offer readers innovative, thought-provoking, reflective and sometimes entertaining material. Take a few minutes and have a look for yourself as you scroll back over the countless entries of the past 12 mon [...]
Mediators often talk about the power of framing their own language and reframing the language of parties and others in mediation settings. For example, mediators may frame their comments in neutral, constructive and future-focused language. They may reframe party statements to detoxify offensive or destructive language or to create a shift from the negative to the positive, from the past to the future, from interests to positions, and so on.
In this blog I want to offer three examples of the power of (re)framing from the perspective of negotiators in a mediation setting, that is parties and their professional advisers. While my comments are equally as relevant to (re)framing by mediators, I [...]
In this post I want to talk about an important thread that is emerging in the science of the twenty-first century. It is the finding that we are all interconnected, that we are porous beings with the ability to influence not only ourselves but one another in ways not previously contemplated. What we previously knew as real, that is the Cartesian duality of mind and body and the notion of separateness in relation to individuals and objects, is a fast-fading myth (Damasio 1994, 1999, BenZion 2010).
This new paradigm for understanding and experiencing the world has profound implications for our approach to conflict. It suggests that how we think can influence the development and life cycle of [...]
It is often said that listening is one of a mediator’s core skills. At the same time the parties’ ability to listen to each other is equally important. Where parties’ communication has broken down to such an extent that they are unable to really hear what each other is saying, mediators can step in and assist them to listen more effectively.
How can they do this? Consider the following conflict that eventually made its way to mediation:
Dr Tooth asks his dental assistant Ms Smile to whether the appointments for the next day have been confirmed. She glares at him, picks up her handbag and walks out of the practice. Dr Tooth calls after her, ‘Well if that is your attitude to work, the [...]
It is a fact of life that lawyers will be involved in many mediations, particularly where they involve litigation matters. Despite initial reluctance to embrace mediation, the tide is turning as Sabine Walsh explains in her posting, Of Turkeys and Christmas – The Role of Lawyers in Mediation. A specialised form of legal practice is developing, known variously as mediation lawyering, mediation advocacy or mediation representation.
In many jurisdictions there are specific obligations on lawyers in terms of statutes, rules of court and lawyer codes of conduct applicable in mediation. These obligations may relate to how to oppose a proposed court referral to mediation, whether to make represe [...]