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Mediating Early And Late

It’s not always easy to spot trends. But one that I have noticed over the last year or two is an increase in the number of cases I am being asked to mediate in which litigation or arbitration proceedings have not yet been issued.

This produces different challenges. On the upside:

• The parties have not had years in which to entrench themselves in the unerring rightness of their cause, nor the irredeemable evil of their opponents. We have all seen the effect that many years of commitment to a particular position can have. Trying to encourage any other perspective after so long can be hard.

• The parties are generally less heavily invested in the case after a shorter time. Thi [...]

How is med-arb regulated in Hong Kong?

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 [...]

Transactional Lawyers and Mediation

The quiet child of the legal brood is the transactional lawyer. They are a group that offer hidden wells of future development for mediation. This group of lawyers has extensive and close ongoing relationships with the individuals clients–the people who work in corporate, government and commercial clients. Transactional lawyers are the ones who document their clients’ new and optimistic contracts, leases purchases or other agreements. They design agreements and arrangements to keep their clients out of trouble, keep the agreement on the rails, and productive to the parties throughout the life of the agreement. It is the transactional lawyer who inserts dispute resolution clauses in the agr [...]

Dispute Boards: Resolving Construction Disputes in Real Time

I have just recently received an arbitral award for a client that resolved a construction dispute which had arisen more than five years ago. Unfortunately, such time frame is not exceptional. Litigation would probably not have lasted any shorter. Construction disputes are usually complex and tend to involve stacks of documents. Such disputes often involve multiple contracts and multiple parties, such as subcontractors or suppliers. Industry insiders know that a dispute related to a small part of the works can lead to serious and far-reaching consequences unless a solution is found quickly and effectively. Undoubtedly, mediation and some other ADR, including firstly Dispute Boards, make it po [...]

The Arb-Med hybrid in Hong Kong – Much ado about nothing?

The recent decision in Gao Hai Yan & Anor v Keeneye Holdings Ltd & Others [2011] HKEC 514, (the “wining and dining” mediation case) has generated a considerable amount of interest in the murky depths of the Arbitration-Mediation (“Arb-Med”) facility. Practitioners and academics are still engaged in deep discourse nearly two months after the case was concluded in the Hong Kong Court of Appeal and some are even questioning whether the Arb-Med facility should be available at all. However, the Arb-Med provision has been seldom used in Hong Kong – and on this basis some critics complain that all of the surrounding fuss really is not warranted. Is the Hong Kong Arb-Med debate much ado about [...]

Try as you may, you can’t hide behind the label

Hong Kong is the global city of designer ‘labels’ as even the most reluctant of shoppers cannot fail to observe. It is also the city of fakes – fakes with labels and fakes without labels – and the place where the ‘No Fake’ label and the ‘No Label’ label thrive!

Confused? Well don’t worry, Hong Kongers aren’t. Apart from harbouring an irreversible addiction to consumerism and retail therapy, Hong Kongers have a keen and sophisticated awareness of the worth (or not) of labels and an ability to look beyond the label to reveal the true nature of that which lies beneath it. This gift not reserved for retail professionals but extends to all echelons of society including member [...]