New Law to Protect Confidentiality of Mediations - 2013

The date for Hong Kong's new mediation law to come into effect has been gazetted: 1 January 2013.

The Mediation Ordinance ("Ordinance") was passed in June this year and enshrines in law the confidentiality of mediation proceedings. 

While confidentiality in mediation is already recognised in Hong Kong, it is usually provided for as part of the mediation agreement between the parties and the mediator.  The new law is intended to instil greater confidence in the process and encourage parties to engage in mediation with more commitment.

The introduction of the Ordinance follows the 2009 Civil Justice Reforms and Practice Direction 31, which require all parties to civil litigation to consider mediation at an early stage of proceedings, with the imposition of cost sanctions for those unreasonably refusing to mediate.

The Ordinance provides that mediation communications are confidential and must not be disclosed except under specified circumstances, for example, where disclosure is required by law or disclosure is made for the purpose of seeking legal advice.  The Ordinance also provides for mediation communications to be disclosed or admitted into evidence where leave has been granted by the relevant court or tribunal.

The Ordinance will cover mediations wholly or partly conducted in Hong Kong or governed by Hong Kong law.  Unusually, the law will have retrospective effect so will cover mediations that have already taken place.

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