In heeding the civil practice reform in England a decade ago, the Civil Justice Reform of 2009 was introduced to bring civil litigation practice in Hong Kong in line with the objectives of cost effectiveness, procedural economy, fairness and access to justice. By facilitating parties in settling their disputes by mediation, the judiciary has, within the general ambit of practice rules, accommodated alternative dispute resolution mechanisms in the common course of litigation practice in Hong Kong. Various measures have been proposed to develop mediation as a key stage in civil litigation, including a culture of settling disputes by ADR, the training of professional mediators and a proposed legislation in the form currently of the Mediation Bill. In this article, I provide an overview of the Hong Kong judiciary's determination of cost consequences under the parties' obligation to mediate. The provisions on confidentiality in the Mediation Bill may do a disservice to the development of mediation as a preferred means of settlement in litigated disputes. Issues of confidentiality and without-prejudice communication should remain a matter of judicial determination.
