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FAQ

During the training courses, meeting with the parties, and in public lectures, we find that the problems raised are very similar, so we summarized these questions and answers as follows:

Q: Why it appears the method of "mediation" to resolve the dispute?

Some people say "lawsuit is a painful legal studies courses"which is quite right in HongKong: Here lawsuit, from both sides go to the court to the opening of the trial court, usually takes one to three years, only after enduring so long days will they get a judgement of right and wrong, actually, it is a kind of torture.

Litigation attorneys fees are not cheap,and if you are lost in the case, the court will order you to compensate the other party attorneys fees, for example, a lawsuit in the High Court, the fees for a Solicitor and a Barrister (required by law, such as a lawyer on behalf of the parties in court, litigation can only be transferred through specialized law firms hired lawyer, that is "counsel" (Barrister) who responsible for submissions to the judge on your behalf), often it will take several hundred thousand dollars to several million, if finally you have to compensate the other party attorneys fees, "minimum consumption" will be close to one million, which is an astronomical figure for the general public, is really too much!

Even winning a case, if the other appeals, in general, there are two chances for the parties to "appeal",in other words, you must be prepared, you may also need to pay for the appeals, with this fight of "burn silver paper.", not everyone can be aware of this before hiring a lawyer.

The procedures and rules for court litigation is very complex, for example, there are thousands of Case (Common Law) principles apply to the High Court trial, some people totally do not understand the provisions of these laws, they can only rely on a lawyer"s explanation. However, the results are often scanty, they can only continue to worry and be anxiety with this.

In dealing with a court case, the judger can only make a judgement based on the principles of the law. But these decisions are often get justice only by "monetary compensation", it does not meet the interests and wishes of the parties, for example, a car knocked down passers, the drivers only pay to the victims compensation, the court has no power to require the driver to apologize to the families of victims, therefore, in compensation for the victims, the driver can actually acrimony to the families of victims: I can afford to compensate, you care me? ", To cite another example, in the case of divorce, the judge only has the power to order the husband to bear the child alimony, but not the authority to direct the husband to care for their children, or visit them at least three times per week. But in fact what the children most in need of is care and concern from his father, instead of $ 3,000 per month maintenance fee.

Since the court has serious drawbacks described above, so the method of "mediation" generated.

Q: What are the advantages of "Mediation"?

"Mediation Services" need lower cost, in the process, any party at any time can terminate the process, it is quick and easy, has less restrictive procedures and the processes are constructive and flexible. Also the process and all information are confidential, so that both sides can maintain a contact and trust.

Q: Why are the two sides can not negotiate privately, while looking for an independent third party "conciliator" presided over the process?

Hosted by a third party professional conciliators mediation, there are four major benefits:

  1. The disputed two sides, often full of hatred and enmity, if has an independent, mature and sophisticated, doing things reasonably reliable third party presided over the discussion, you can ease the sides, so both sides calm, positive and frank exchange of views, the effect is bound to be more effective.

  2. Conciliators are specially trained experts who have a wealth of knowledge and experience to solve the dispute, therefore, they led mediation process, unlike two ordinary people to sit down and negotiate.

  3. Many conciliators have professional backgrounds, such as social workers, teachers, doctors, lawyers, accountants, engineers, etc., in the process, their expertise, can play a role in assisting the parties to a more accurate understanding of their situation to improve communication outcomes.

  4. Successful reconciliation, finally leading to the two sides signed a legally binding "Settlement Agreement", due to the different interests of the disputed parties, by an independent third party to assist in drafting and finalizing the terms of the settlement agreement and the use of the word, so that the two sides signed ease.

Q: Decision after the reconciliation, whether legal can make protection and enforcement for this agreement?

After a successful mediation of the conciliators, the two sides will sign a dispute settlement agreement or called "Settlement Agreement" (Settlement Agreement). Currently, the implementation of a settlement agreement, and the implementation of a common contract (Contract) has no difference. As long as one party to the courts according to the contract, perform the prosecution that the other party undermine this agreement, this agreement is due professional conciliator to assist in drafting, content is relatively clear, the courts will be easier to perform. In addition, a court in these cases, the focus is on how to understand and execute the contents of the Settlement Agreement, but do not have to spend a lot of time to study both sides before mediation rivalry, it will save a lot of money and time.

Thus, with the settlement agreement, even if the other side breaks the agreement, in the recovery of each other, it will also be easy and better than no settlement or a lawsuit directly sue each other. Moreover, since the settlement agreement was consensual signed, according to statistics, the proportion of the parties to comply with the settlement agreement even more than comply with the court ruling.

Q: How long will a mediation takes? How much is the cost of a mediation?

Although there exits much knowledge behind the mediation and the theory is much wide,and in the mediation process, it often asks for other knowledge such as law, psychology, sociology and so on. However, excellent conciliator often emphasize two points:

• Layman

• Simplify

Conciliators of the centre have received good training, understand the"fast, simple and good" principle. From our experiences, the fastest possible reconciliation only takes two to three hours, also the longest within one week to solve the problem, unless it is a very specialized cases such as construction disputes, medical malpractice, industrial action and so on, or if after several days of incidents, still no sign of reconciliation, then the party conciliator may recommend suspension or permanently abandon reconciliation, because if go on, it could be a waste of money. However, after the mediation process, even if the parties to a lawsuit to resolve the problem, can also be easier to grasp the focus of the dispute.

Mediation costs are timed charge and different fees for different conciliators, generally ranging from nearly a thousand dollars to several thousand dollars. Referral of cases by the central to be charged an administrative fee of HK $ 2,000.

Q: Is the cost for success and failure of the mediation different?

The central proposal of mediation success and failure with uniform fees, has no difference with following reasons:

If the cost be relatively cheap when a conciliation fails, then, some irresponsible parties will think: "If the mediation fails, the cost is relatively cheap, I can afford anyway, no big loss, why should carefully pains to go participate in the process it? "

Moreover, how to define the success or failure of the mediation? For example there are three problems, we solved two and one remaining, is this a success or failure, how to charge it?

Q:In the mediation process, as the parties reach a settlement or termination of private mediation, will they need to pay the full estimated cost of it?

Inter mention may deal with litigation counsel to fee-based, it is true that some people have criticized some of the laywers who still charge the full cost estimated in the trial after a lawsuit settlement, it is unreasonable. Of course, barristers have their reasons, because they expect a certain period of time to be on the court, he can not be entrusted to other lawsuit case, natural to calculate losses.

The purpose of the center is to serve the public, we ask conciliators time charges, if shortening the mediation process due to an accident, the cost of the conciliator will be reduced accordingly. Similarly, as a result of an accident to extend the mediation process, to be fair, the conciliator still time charged.

Some customers and conciliators in the case of the center is not opposed to it, work out other payment methods, methods for these charges and cases, the center will be discretionary. Currently, the center also propose to be charged for several hours total staff costs as a starting point.

Q: How much it can be saved of costs of mediation, compared with arbitration or the Court Action?

Currently, there is still no formal or specific surveys and estimates, however, because the "Arbitration" (ie, the two sides agreed to seek dispute an independent third party, served as judges to adjudicate him by the court if the Court Judgment implement, and sometimes because the two sides should bear Arbitrators, interpreter or other items, the cost is not cheap, so the cost of arbitration, often spend a hundred thousand dollars.

On the other hand, the court"s attorneys" fees are not comparable.

Therefore, it was estimated that the costs of mediation is one in ten (10%) or below arbitration or court action, which explains why some dispute, both sides in the procedure of a lawsuit or arbitration, are still willing to spend an extra sum of money, find a conciliator to help, trying to quell the controversy.

Q: What is the scope of mediation for the most applicable?

Basically, when there is a dispute can not be solved, we need mediation services, for example:

• Family disputes;

• marital disputes;

• financial disputes;

• business and equity disputes;

• property disputes;

• tenancy disputes;

• labor disputes;

• Traffic personal injury disputes;

• libel disputes;

• trademarks and other intellectual property disputes;

• School accident;

• Consumer Disputes interests;

• construction disputes;

• Insurance disputes;

• Urban Renewal disputes;

• citizens and government and public bodies disputes;

• Import and export of disputes;

• Medical dispute and so on.

Q: Whether In the case of consent for the two parties can we do the mediation?

Basically, this argument is right, because the mediation is a consensual action, therefore, if one party does not agree to find conciliators, or halfway to unilaterally withdraw from the mediation, which is permissible. However, based on our experience, few people in the mediation will suddenly withdraw quit midway because conciliator will tell him the pros and cons.

However, in some field there is Compulsory Mediation. For example, in some cases judges have the right to command both sides of a lawsuit, you must first mediation. In Hong Kong, so far, only marital dispute, the parties may be ordered by the court to force mediation. The center eagerly desired, such mandatory mediation, can be extended to small claims as soon as possible, cases of labor disputes and traffic injuries compensation. In addition, the government works construction contracts, and many businesses have been adding mediation clause in the contract.

That is, when the two sides signed a contract agreement between the parties, if any dispute must accept mediation, then either party in the event of dispute, even change their mind, the contract would still require them to conduct mediation, and then allow the parties to court, these contract terms called Mediation Clause, in construction contracts, the terms of which are very common.

Q:Whether the costs of mediation by the parties to the dispute must pay half (50%) for each?

Mediation is a voluntary action, therefore, any arrangements or Ground Rules, must be negotiated and agreed by the parties to be valid (court order or both long contract is another case). In other words, in terms of costs, the two sides negotiate to pay half for each in most cases, or borne by the unilateral alone.

Q: Mediation area and range of applications, only apply to Hong Kong?

Court or Arbitral Tribunal have geographical restrictions, they may not have the right to deal with foreign-related cases, may not be able to exercise its powers in places outside Hong Kong or countries.

However, since mediation is a consensual action, can be held or resolve in any place, for example, the port of trade disputes, can negotiate to find a conciliator in Hong Kong to Nanjing presided over the mediation, as long as the parties agree, there is no right or region Jurisdiction of the problem. In addition, the success of reconciliation after the Settlement Agreement, because it is a voluntary agreement between the two sides can be made to any court countries in the region, according to local law, the application shall be executed.

Q: If the disputing parties are in different places, can the two sides come to Hong Kong to seek mediation services in HKMC?

As long as both parties agree, the dispute center is willing to deal with the dispute of foreign parties, "no one can not, nowhere can not be, nothing can not be" is the biggest advantages of mediation.

Q: HongKong Mediation Centre and other institutions, what are the differences?

First, the purpose of this center, and other mediation mechanism is the same: to promote mediation, to serve the public. However, the center has the following unique features:

Most of the conciliator of our center can understand Chinese and English simultaneously , and some can understand Thai, therefore, the parties can save the inconvenience caused due to the interpretation and additional costs.

Background of the conciliators of our center are diversificated, some are experienced conciliators, some are industry experts, and some are personally trained outstanding talent of the center.

The Centre is a non-profit organization, unlike other mediation organizations. We do not see ourselves as an academic unit, pressure groups or interest groups, we have a pragmatic, concrete and enterprise operation: First, all people, regardless of whether there are actual mediation cases are treated as our clients. Second, all of the members are our partners. Third, we keep pace with society, if there is social strife, in fact, mediation is available, we will take the initiative to intervene,introduce the benefits of mediation to both sides of the dispute. In some cases, it provides free public mediation services.

The center initiatively contact with the community, strive for mediation cases for the conciliators, so that they can gain experience, accumulated wisdom, enhance knowledge and contribute to the public. Conciliators of our center are a group of mediation workers for the society.

Q: Is the Hong Kong government forces all litigation must go through mediation first began in 2010?

Starting from January 1, 2010, Hong Kong SAR cited by Practice Direction on all civil parties to the dispute would recommend to try mediation to resolve before continuing the proceedings of law if the mediation is unsuccessful. It proves that Mediation is a good way to solve the dispute.

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