The term alternative dispute resolution (ADR) refers to a range of methods in resolving a dispute outside the court system. It includes arbitration, adjudication, early neutral evaluation, conciliation, mediation and negotiation. In this article, we will focus on mediation in the form that is most commonly practised in Hong Kong, the US and other common law jurisdictions.
Mediation is conducted by a mediator. In Hong Kong and many jurisdictions, the mediator undergoes special training and official accreditation. It is a precondition that the mediator should be impartial, fair and independent, having no conflict of interest with the parties for the case he/she takes on. In some cases, a mediator is chosen for his/her specialist knowledge and experience, such as construction, insurance, intellectual property, or family law.
The mediator does not adjudicate the dispute. He assists the parties to come to agreement on settling the dispute through identifying the issues and underlying interests, generating options, encouraging the use of objective criteria and data, and helping them to reality-test their thinking and proposals.
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CW Ling, a barrister, is the honorary secretary of Hong Kong Mediation Council (a division of the Hong Kong International Arbitration Centre) and an accredited mediator; Stephanie Cheung, a solicitor, is a council member at Hong Kong Mediation Council and an accredited mediator