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The following is issued on behalf of the Judiciary:

Family law in Hong Kong is undergoing fundamental transition by the institution in about a month's time of a pilot scheme which will make mediation a court-endorsed, viable alternative to the rigidities of litigation.

The Honourable Chief Justice Andrew Kwok-nang Li said today (Wednesday) when addressing the Annual General Meeting of the Hong Kong Family Law Association held in Hong Kong Club.

"While we may regularly monitor and strive to improve our practices and procedures in the matrimonial jurisdiction, increasingly judges had come to accept that, as has been well put, in family matters, litigation was a "socially inefficient" method of resolving disputes.

"As a result, almost without exception, Common Law jurisdictions have brought in or are considering instituting procedures which encourage litigants to attempt some form of alternative dispute resolution," Mr. Justice Li said.

The Chief Justice noted the pilot scheme, which was scheduled for a period of three years, resulted from the recommendations of the Working Party under the chairmanship of the Hon Mr. Justice Hartmann, Judge of the Court of First Instance of the High Court.

Mr Justice Li introduced that under the pilot scheme, mediation would be a voluntary option available to litigants.

"What, however, will not be voluntary will be the duty on the legal profession to bring to the attention of the parties the possible benefits of mediation.

"When the scheme commences, solicitors who represent parties in either instituting or defending matrimonial proceedings will be under a positive obligation to explain the meaning and merits of mediation to their clients and to give them a pamphlet which explains the process in detail.

"As proof that this has been done, a certificate signed by both the solicitor and the client will have to be filed with the Registry," Mr. Justice Li said.

The Chief Justice also noted that the process had been made as simple as possible for those litigants who chose mediation.

"Within the precincts of the Family Court, space has been set aside to provide offices and conference facilities for a Mediation Coordinator who will conduct information sessions for those seeking mediation and who will act as the liaison between the parties and the mediators.

"The first Mediation Coordinator has already taken up her post and is making preparations for a smooth start to the pilot scheme," Mr. Justice Li said.

Regarding the role of the judges in the scheme, the Chief Justice stressed that while in appropriate circumstances, judges would encourage parties to attempt mediation, judges should at all times be seen to maintain their neutrality.

"Judges should not be perceived to be working hand in hand with the Mediation Coordinator or with individual mediators.

"Equally important, there should be no grounds for believing that a Family Court judge may be biased either for or against one party because of the outcome of mediation.

"It will, therefore, be fundamental to the pilot scheme that, while family judges will encourage mediation, and while mediation will be an integral part of our family law system, judges will play no role whatsoever in the mediation process.

"Nor will they receive reports which may be perceived as in any way sowing the seeds of bias," Mr. Justice Li explained.

In order to assess the strengths and weakness of the pilot scheme, Mr Justice Li said a team from one of Hong Kong's tertiary institutions would soon be appointed to conduct an in-depth evaluation.

"That team will provide an interim assessment at the end of the second year and a full evaluation when the scheme comes to an end," he said.

As for funding, the Chief Justice pointed out that the Government had provided funds not only to finance the office of the Mediation Coordinator but also to meet the costs of a large number of parties seeking mediation.

"While the funds will not be sufficient to subsidise everybody seeking mediation, they will subsidise a sufficiently large number, over 1,000 couples, to enable the success of the scheme to be accurately evaluated," Mr Justice Li said.

The Chief Justice noted that with the option of mediation, our system of justice in the family area had a mechanism that encouraged non-adversarial settlement of disputes.

"But any system of justice, no matter how polished and well tuned, can only be as good as the barristers and solicitors who practise within that system.

"I am pleased to say that recent studies conducted in several Common Law jurisdictions have shown that the great majority of family law practitioners do their best to deflect the litigious impulses of their clients, that they attempt to explain the long term pitfalls of acrimonious court proceedings and remain responsible for a significant proportion of the sensible and lasting settlements that bring family disputes to an end.

"I am sure that this is also true in the case of our jurisdiction," The Chief Justice added.

End/Wednesday, October 13, 1999

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