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Can Hong Kong Lawyers Act As Mediation Advocates?

The common response to learning about the field of mediation is to inquire as to the differences amongst the channels of litigation, negotiation conducted through lawyers compared to negotiation assisted by a mediator, in terms of their processes as well as their outcomes. Such understanding is important for clients to select an appropriate process to settle their disputes. It also sheds light for lawyers to position themselves in the changing civil justice culture. Clients today are not merely looking for “a day in court”, but are expecting lawyers to settle disputes in the most cost-effective manner, and at the same time, achieve results that fulfill their business or strategic goals.   This article is adapted from our literature review dedicated to providing insight on how to incorporate different “strategic paths”   – negotiation, mediation and litigation into legal practice, by drawing on overseas literature as well as our limited experiences serving as mediation advocates in Hong Kong.

Traditional Bilateral Negotiation

A key indicator to differentiate mediation from traditional bilateral negotiation performed by lawyers is that in the latter form of negotiation, the parties are demoted to a less involved position. The context of negotiation is usually positional or distributive   in nature, based on facts and legal points. Lawyers are more active and exert influence over the approach of the negotiation. Their advices are powerful as to whether their clients should accept the offers of the opposing parties.

Such negotiation is not often formally conducted. It is sometimes conducted through telephone conversations (see also D. Barnhizer 1997 p.234), correspondences, during or after coincidental meetings or pretrial discovery, even at the court’s corridor. The majority of cases settle after considerable time and money have been spent, typically with unsatisfactory outcomes.   (Silver, 2001)

Mediation

Mediation is a structured, confidential...