Arguments of one kind or another seem to be a part of everyday life. At work or at home, problems often get magnified to the point where no blame is accepted and neither party is prepared to back down. If no resolution can be found, cases can end up in the courts as the final step in a process that will probably have been long, costly and acrimonious.
There is, though, another way. The appointment of a skilled mediator can help in resolving all manner of disputes just as effectively as taking the legal route. As a properly trained neutral third party, a mediator will plan a process to bring together parties in dispute to discuss, understand and end their disagreement. The process is voluntary, confidential and impartial. The role of the mediator is not to adjudicate but to facilitate a settlement, and any agreement reached can be finalised in a legally enforceable contract.
"Over 80 percent of mediation cases are satisfactorily resolved," says Raymond Leung, who helped to save an estimated HK$6 million in legal fees for the parties in just one dispute three years ago. During the process, the mediator will employ certain techniques to review options and achieve a "win-win" solution. One of those strategic techniques is to encourage parties to set down the points in dispute on no more than two sheets of paper. "This helps to get straight to the heart of the matter and isolate the key issues," explains Mr Leung. It also cuts out many unnecessary distractions.
When you can free people from the agony of a court appearance, that is a great satisfaction
By profession, Mr Leung is chief executive officer of a company which advises on capital construction projects. As a part-time mediator, however, he has had a 100 percent success rate in the 30 or more cases he has handled since 1996. He first became interested in the subject over 10 years earlier when studying a part-time law course. Subsequently, he became an arbitrator specialising in construction contract disputes and, when the government organised a mediation course related to the Chek Lap Kok airport project, he was among the first to sign up.
Keen to take things a step further, Mr Leung set up the not-for-profit Hong Kong Mediation Centre in 1999 with colleagues Sylvia Siu and Maurice Lee. Their shared vision is that mediation can do much to resolve disputes, particularly when the basic theories are adapted to the local environment. "The process can help us understand ourselves and other people better," says Mr Leung. "It can also create a more peaceful and practical way of overcoming day-to-day problems."
Despite a hectic schedule, Mr Leung believes his work as a mediator lets him make a valuable contribution to society. "When you can free people from the agony of a court appearance, that is a great satisfaction," he explains.
To become an accredited mediator, one must attend the centre's 42-hour training course, pass a written test and handle two mock mediation cases. The work is not yet seen as being a full-time profession and one third of any fees earned are contributed to the centre to support their operations. For those interested in training, there are no specific academic requirements, but proficiency in English and varied work experience are an advantage. Integrity and a sense of authority are also essential.
Since starting, the centre has trained over 1,000 people from all walks of life, ranging from government officials to police officers, businessmen and social workers. Some learn in order to help their work, others for general interest or to improve their personal lives. Cases dealt with by the roughly 100 accredited mediators are obtained by referral from the centre or on the basis of reputation.
To encourage wider application of mediation as a means of resolving disputes, Mr Leung is lobbying the government, and the Law Reform Committee in particular, to include it as a provision in business laws. The centre has already achieved some notable successes in working with various government departments when offering free mediation services in property management disputes and family quarrels.
Looking ahead, Mr Leung expresses the hope that mediation does not go the way of arbitration and become too legalistic. "In this practice, the fewer rules we have, the better," he says. "The creation of too many structures will reduce effectiveness. There should be room to let the parties manoeuvre and decide what they want."
Under Chinese law, mediation is one of the first steps recommended for resolving a dispute. The practice is widely applied in people's courts and judges have a role to play as mediators in establishing the basis of any dispute. As business cooperation between Hong Kong and the mainland grows, it is likely that the number of commercial disputes will also be on the rise. Mr Leung, therefore, believes there will be more opportunities for experienced Hong Kong mediators to take up cases outside the court system in China.