FAQ

Mediation is a voluntary and confidential process facilitated by an impartial mediator who helps disputing parties reach an amicable settlement without making decisions for them. It is informal, collaborative, and often faster and less expensive than litigation, allowing parties to retain control over the resolution and craft flexible solutions tailored to their needs. Mediation is suitable for most disputes, except severe issues like child abuse, and is particularly effective in family disputes. In contrast, litigation is a formal, adversarial process where a judge makes a binding decision, often resulting in a win-lose outcome that may strain relationships and incur substantial costs. The choice between mediation and litigation depends on the nature of the dispute and the parties' willingness to engage in a cooperative process.

Mediation offers numerous benefits for resolving disputes. It is a voluntary process where a neutral mediator assists parties in reaching an amicable settlement tailored to their needs. Unlike litigation, mediation is less adversarial, saving time and money while reducing anxiety and disturbances to daily life. Parties retain control over the decision-making process, fostering more willing compliance with agreements. Additionally, mediation maintains privacy and confidentiality, allowing for flexible and practical solutions beyond legal remedies. It can also preserve or improve relationships, especially in family disputes, and minimize the risk of appeal. Overall, mediation provides a more relaxed and cooperative environment for dispute resolution.

Mediation can be attempted before and after legal proceedings are commenced. The lawyer having conduct of the legally-aided case will discuss and advise you whether mediation is appropriate in the case. If mediation is considered appropriate, the lawyer will explain to you 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 your consent, the lawyer will seek prior approval from the Director of Legal Aid so that timely mediation can be arranged.

Mediation does not require a lawyer, but consulting a lawyer may help you understand the legal aspects and prepare for mediation. Participants can seek independent legal advice before reaching an agreement. Mediators, even if being qualified lawyers, do not provide legal advice to either party in order to maintain impartiality. Legal advice should be arranged independently, as mediators remain neutral third parties.

It depends on whether the underlying proceedings is within the scope of legal aid. The Ordinary Legal Aid Scheme and Supplementary Legal Aid Scheme cover various kinds of civil legal proceedings. If the underlying proceedings is within the scope of legal aid and the applicant passes both the merit test and means test, legal aid may be granted to him/her for taking such action as stipulated in the Legal Aid Certificate, which may include mediation, to be conducted before or after commencement of legal proceedings, subject to the prior approval by the Director of Legal Aid on the engagement of mediator.

If you have a choice of mediator, you may communicate with the solicitor having conduct of your case so that your solicitor can discuss and advise you whether he/she is suitable. Alternatively, your solicitor can also suggest a suitable mediator to you. For legally-aided cases, the assigned solicitor should seek the prior approval from the Director of Legal Aid for the engagement of a mediator.

Mediators are not lawyers representing any party in the mediation and they do not provide legal advice. If you need legal advice during the course of mediation, you should consult your solicitor. If you wish to have your solicitor attending the mediation, your solicitor has to obtain the prior approval from the Director of Legal Aid with justifications.

To facilitate the settlement of dispute, you are under a duty to engage yourself in the mediation to the minimum level of participation agreed to by the parties or as directed by the Court, and in giving full assistance to enable the mediation to proceed and be concluded within the time stipulate.

Prior to the mediation, you should familiarise yourself with the parties’ case including the issues in dispute, the chance of success (including the various acceptable settlement options), litigation risks, amount of damages, costs already/ to be incurred (if mediation failed) and the chance of recovery of costs. You may seek prior legal advice if necessary.

The mediator brings the parties together face-to-face in a private and confidential setting. Each party will have the chance to express his/her points of view and hear what the other side has to say. The mediator does not adjudicate on the merits of the case or impose a decision on the parties but will help them discuss and identify what matters are in dispute; explore each party’s real needs and interests; expand settlement options and assess the most suitable solution; and if parties can come to a settlement, the mediator will help draw up such agreement in writing, setting out the terms of settlement in detail.

If no agreement or only a partial agreement can be reached through mediation, the litigation process will continue and all the issues in dispute or some of the issues still in dispute can proceed to be tried by the court if necessary.

The mediation process must be remained confidential at all times in that no third party is to be privy to the proceedings other than the parties and mediator. Further, under no circumstance should any matters discussed in private sessions, namely the meeting between the mediator and one of the parties only, be disclosed to the other party by the mediator without permission.

The court encourages the parties in proceedings to attempt mediation to resolve their dispute. Therefore if you unreasonably fail to engage or refuse to engage in mediation and cannot give a good explanation, you may be ordered to pay costs. Besides, as the Legal Aid Department supports the use of mediation, if you failed or refused to engage in mediation without proper reason, failed or refused to engage yourself 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, such behaviour may amount to conduct which makes it unreasonable for legal aid to be continued. In which case, the legal aid certificate may be discharged. If you are in doubt as to whether you should attempt mediation, you may discuss with your lawyer.

If you are not satisfied with the conduct or service of the mediator, you may bring it to the attention of the mediation organisation from which the mediator is accredited for appropriate action, if any, to be taken against the mediator. You may also advise the Legal Aid Department of your complaint but the Department, not being the regulatory body, is not in any position to take any disciplinary action against the mediator in question.

In most cases, mediation is much cheaper and faster than litigation. The meditator will charge for his/her service on hourly or daily basis and there may be incidental expenses such as hiring of venue for the mediation. Prior to the mediation, parties should agree on the terms of payment of mediator’s fee and expenses. 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.