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Be warned… if you choose not to engage in Family Mediation!
By Kenneth Yung, Associate
Previously, legal practitioners were only obliged to advise their clients involved in family litigation as to the availability of family mediation and to provide them with the relevant information, but the parties were then free to opt out of family mediation as they saw fit or appropriate.
However, since the new Practice Direction 15.10 issued by the Hong Kong Judiciary came into effect on 2nd May 2012, parties to family litigation instituted on or after 2nd May 2012, are required to consider engaging in mediation to resolve their dispute. Each party, or the party’s legal representative, must file a Certificate of Mediation with the Court indicating whether or not the party wishes to attempt mediation, and if one chooses not to do so, the party must set out the reason.
Any party who does not wish to attempt mediation must be made aware of the possibility of the Court making an adverse costs order when a party “unreasonably fails to engage in mediation”, as the new Practice Direction 15.10 expressly provided that:-
1.4 In exercising its discretion on costs, the Court takes into account all relevant circumstances. These would include any unreasonable failure of a party to engage in mediation where this can be established by admissible materials. Legal representatives should advise their clients of the possibility of the Court making an adverse costs order, where a party unreasonably fails to engage in mediation.
1.5 The Court will not make any adverse costs order against a party on the ground of unreasonable failure to engage in mediation where:
(i) The party has engaged in mediation to the minimum level of participation1 agreed to by the parties or as directed by the Court.
(ii) A party has a reasonable explanation for not engaging in mediation.
Footnote 1 - An example of a specified minimum level of participation may be as follows: “Agreement between the parties as to the identity of the mediator and the terms of his or her appointment, agreement as to the rules applicable to the mediation (if any) and participation by the parties in the mediation up to and including at least one substantive mediation session (of a duration determined by the mediator) with the mediator”.
With the new Practice Direction 15.10 now in force, it brings the Court’s approach to mediation in Matrimonial and Family proceedings more in line with other civil proceedings (since Practice Direction 31 came into effect on 1st January 2010 – a party may face an adverse costs order if one fails to engage in mediation to the minimum level of participation or has no reasonable explanation for not engaging in mediation).
Clients should be aware and be warned that if the Court considers that a party has unreasonably refused to attempt mediation, and insisted on pursuing the dispute by litigating to trial at Court, the party may not be awarded an order for its legal costs even if the party succeeded at trial!
It is therefore advisable for any party in Matrimonial and Family proceedings to engage in mediation to the minimum level of participation to avoid any potential adverse costs order made by the Court on the ground of unreasonable failure to engage in mediation.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.
OLN participates in the ABL Conference in Mumbai (2-6 May 2012)
The ABL (Alliance of Business Lawyers) network connects lawyers in Europe, North America and across the world. OLN joined ABL in 2011 (http://www.alliance-of-business-lawyers.com/en/).
The conference was hosted by a Mumbai based member of ABL, law firm Dave & Girish with the active participation of Bangalore (MMB Legal) and New Delhi (Singh& Associates) members. Participants interacted with a number of high-profile speakers, notably Dr. Mr. Veerappa Moily, Union Minister for Corporate Affairs of the Government of India. In more than one occasion, speakers highlighted the opportunities for investments in India, especially in infrastructures, green energy, and chemical industry.
India ranks as Hong Kong seventh largest trading partner in volume. The average annual growth rate in bilateral trade between Hong Kong and India was 25% from 2006 to 2010; and +39% between 2009 and 2010, to HK$ 146.2 billion.
OLN was invited to make a presentation on “Doing business in Hong Kong” which can be downloaded by clicking on the following link:
To discuss your legal needs in relation with investments and businesses with Indian partners please contact:
Maëva Slotine – Head of OLN French Practice: maeva.slotine@oln-law.com
who attended the ABL Conference in Mumbai on behalf of OLN
and/or
Gordon Oldham – Founding Partner: gdoldham@oln-law.com
Globalaw, a downpour of exchange
The Globalaw 2012 Asia Pacific Regional Meeting was recently held in Hong Kong and hosted by Oldham Li & Nie.
The event took place from the 19th to the 21st of April, 2012. There were 33 Globalaw member firms represented, most members from the Asia Pac region, from Korea to NZ and many from further afield with a strong presence from dedicated members from across the USA, England, Netherlands and France.
There were very interesting talks by Itzik Amiel, Richard Healy, Christopher Hooley, Rickesh Kishnani, Philippe Koutouzis, Gordan Oldham, Mike Rowse, Arthur Shay and Vera Sung.
In the year of the Dragon, specifically the rain dragon, the weather was very apt. However the tropical downpours, which limited sightseeing visibility at the Peak and cancelled the afternoon hike, did not dampen the spirits.
The Globalaw members were treated to various activities around Hong Kong including a trip on the Aqua Luna boat, which sailed around the Hong Kong harbour, before dropping guest off at the world renowned Hutong restaurant in Tsim Sha Tsui. Sightseeing tours included the Big Buddha (largest bronze Buddha in the world, 34m high), the Po Lin Monastery, the Peak, Stanley Market and a hiking trip led by Gordon Oldham.
We would like to thank all of the Globalaw members who travelled across the globe to attend this event and ANT Trust & Corporate Services for helping sponsor this event.
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