PRACTICE DIRECTION - 31
MEDIATION
Part A
1. An underlying objective of the Rules of the High Court and the District Court is to facilitate the settlement of disputes. The Court has the duty as part of active case management to further that objective by encouraging the parties to use an alternative dispute resolution procedure ("ADR") if the Court considers that appropriate and facilitating its use ("the duty in question"). The Court also has the duty of helping the parties to settle their case. The parties and their legal representatives have the duty of assisting the Court to discharge the duty in question1.
2. The aim of this Practice Direction ("PD") is to assist the Court to discharge the duty in question. It applies to all civil proceedings in the Court of First Instance and the District Court which have been begun by writ2 except the proceedings set out in Appendix A.
3. ADR means a process whereby the parties agree to appoint a third party to assist them to settle or resolve their dispute. Settlement negotiations between the parties do not amount to ADR. A common mode of ADR is mediation. This PD applies to mediation. Where the parties are engaged in arbitration proceedings, the court proceedings would be stayed and this PD would not apply to such proceedings.
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.
5. The Court will not make any adverse costs order against a party on the ground of unreasonable failure to engage in mediation where:
(1) The party has engaged in mediation to the minimum level of participation agreed to by the parties or as directed by the Court prior to the mediation in accordance with paragraph 13 of this PD.
(2) A party has a reasonable explanation for not engaging in mediation. The fact that active without prejudice settlement negotiations between the parties are progressing is likely to provide such a reasonable explanation. However, where such negotiations have broken down, the basis for such explanation will have gone and the parties should then consider the appropriateness of mediation. The fact that the parties are actively engaged in some other form of ADR to settle the dispute may also provide a reasonable explanation for not engaging in mediation in the meantime.
6. In all contexts, including dealing with matters arising under this PD and in exercising its discretion on costs, the Court cannot compel the disclosure of or admit materials so long as they are protected by privilege in accordance with legal principles, including legal professional privilege and the privilege protecting without prejudice communications. What happens during the mediation process, being without prejudice communications, is protected by privilege. It must be emphasized that there is no question of the Court undermining the protection afforded by privilege.
7. Part B applies to proceedings in which all parties are legally represented. Part C applies to proceedings in which one or more of the parties is not legally represented.
Part B
8. This Part applies to proceedings in which all parties are legally represented.
(1) Mediation Certificate
9. In proceedings where all the parties are legally represented, solicitors acting respectively for the parties shall file in Court a Mediation Certificate at the same time as the time tabling questionnaire filed under Order 25, rule 1. The Mediation Certificate shall contain the information required and be in the form as per Appendix B, with modifications if necessary, and signed by the solicitors and the party they represent.
(2) Mediation Notice and Response
10. If a party ("the Applicant") wishes to attempt mediation, he should as soon as practicable after filing the Mediation Certificate serve a Mediation Notice on the other party or parties ("the Respondent") in the dispute in the form and containing the information as per Appendix C, with modifications if necessary, and signed by the Applicant or his solicitor.
11. Upon receiving the Mediation Notice, the Respondent should respond to the Applicant by way of a Mediation Response within 14 days (or such other time as the parties may agree or as the Court may direct) in the form and containing the information as per Appendix D, with modifications if necessary, and signed by the Respondent or his solicitor.
12. Where the parties put forward differing proposals in the Mediation Notice and Mediation Response, the parties should attempt to reach agreement on the proposals on which they differ as soon as practicable. Any agreement consequent upon such discussion should be reduced into writing in a minute called the Mediation Minute signed by the Applicant and the Respondent or their solicitors.
13. Where the parties are unable to reach agreement on certain proposals in the Mediation Notice and Mediation Response in relation to the mediation:
(1) If the parties are willing to have their differences resolved by direction of the Court, they may make a joint application to the Court for directions resolving the points of difference between them; and
(2) in the absence of such willingness, any party may apply to the Court for directions and the Court may give such directions as are appropriate to resolve differences between the parties regarding the proposals that they have each made in the Mediation Notice and the Mediation Response respectively, but only in respect of the matter of time referred to in paragraph 11 above and the matters referred to in paragraphs 4, 5, 6 and 7 of the said Notice and Response3.
14. Where the parties reach agreement on mediation in accordance with the Mediation Notice, Mediation Response and any Mediation Minute, the parties should proceed in accordance with the stipulated rules and timetable and, if appropriate, may apply to the Court for an interim stay of the proceedings.
15. The Mediation Notice and Mediation Response shall be filed in Court at the time of the service of the same on the other party. The Mediation Minute shall also be filed in Court within 3 days after it has been signed by or on behalf of both parties. These documents may be taken into account by the Court on questions of costs.
(3) Application for Stay for Mediation Purposes
16. The Court may, on the application of one or more of the parties or of its own motion, stay the proceedings or any part thereof for the purpose of mediation for such period and on such terms as it thinks fit, bearing in mind the importance of avoiding so far as possible, disruption to the milestone dates and of avoiding, save in exceptional circumstances, any postponement of the trial dates.
17. Where the Court stays the proceedings, the plaintiff must promptly inform the Court if a settlement is reached and the parties should take the necessary steps to conclude the legal proceedings formally.
Part C
18. This Part applies to proceedings in which one or more parties are not legally represented.
19. On the application of a party or on its own motion, the Court may consider at a suitable stage whether mediation is appropriate, taking into account all the circumstances. The Court may seek information from the parties for this purpose, always respecting privilege.
20. Where the Court considers that mediation is appropriate, the Court may give directions that the parties should follow the procedure set out in Part B with any necessary modifications.
Part D
21. This PD shall come into effect on 1 January 2010.
Dated this 12th of February 2009.
| (Andrew Li) | |
| Chief Justice |
1 See Order 1A, rule 1(e), rule 3 and rule 4(2)(e) and (f).
2 The proceedings include those which were begun by originating summons but were ordered to be continued as if the cause or matter had been begun by writ. See Order 28, rule 8.
3 Paragraph 13(2) is directed at facilitating the mediation by having the Court resolve differences concerning the details or mechanics of the mediation process where the parties have agreed to attempt mediation. The Court may not, for instance, be asked to direct a party to engage in mediation or to appoint a particular mediator over the opposition of the other party, unless both parties are willing to have their differences resolved by the Court. See paragraph 13(1).