Mediation in Legally-aided Cases

In civil cases, the Courts require parties to proceedings including legally-aided parties to explore the possibility of mediation before pursuing litigation. Unreasonable refusal by a party to mediate may result in a costs order against that party. Parties have to file certificates stating that they have been advised about mediation, whether the mediation has been attempted and if not, the reasons for not doing so.

Besides, as Legal Aid Department supports the use of mediation, failure or refusal of an aided person to engage in mediation without proper reason, failure or refusal to engage himself or herself in mediation to the minimum level of participation as agreed by the parties or as directed by the Court or to give full assistance to enable the mediation to proceed or be concluded within the time stipulated, may amount to conduct which makes it unreasonable for legal aid to be continued, in which case, the legal aid certificate may be discharged.

The lawyer having conduct of the legally-aided case will discuss and advise the aided persons whether mediation is appropriate in the case. If mediation is considered appropriate, the lawyer will explain to the aided person the fee charged and the qualifications and experience of the mediator, the number of hours required for mediation and the Director’s First Charge implications. With the consent of the aided persons, the lawyer will seek prior approval from the Director of Legal Aid so that timely mediation can be arranged.

As mediation is an integral part of civil litigation, the reasonable cost of mediation can be claimed as expenses incidental to the court proceedings, for which legal aid is granted and will be paid for by the Legal Aid Department. Depending on the agreement which can be reached between the aided person and the other parties or other orders of the court, the aided person may have to pay back some or all of the mediation costs out of his/her contribution or from any money/property he/she gets or preserves in the proceedings because of the Director of Legal Aid’s First Charge.