It is generally accepted in Hong Kong and many other jurisdictions that mediation is 'confidential'. This book examines the three non-statutory components of mediation confidentiality in Hong Kong - contractual or equitable confidentiality; the without prejudice doctrine; and legal professional privilege - together with the Hong Kong Mediation Ordinance. This study looks at the protection which each of the components and the Ordinance affords to the participants in mediation and the deficiencies in the same.
The author argues that the justification for a specific mediation confidentiality may be found in the very nature and philosophy of mediation itself and, in particular, its distinctive empowerment of the parties and its independence from the litigation process. It is contended that, to the extent that they share these qualities, other forms of ADR should be similarly protected.
This book will interest and be useful to academics, students and legal practitioners interested in mediation and ADR in Hong Kong and elsewhere.
The thesis upon which this book is based was awarded the University of Hong Kong's prestigious Li Ka Shing Prize.
Reihe
Sprache
Verlagsort
Zielgruppe
Maße
Höhe: 229 mm
Breite: 152 mm
ISBN-13
978-0-85490-264-4 (9780854902644)
Copyright in bibliographic data and cover images is held by Nielsen Book Services Limited or by the publishers or by their respective licensors: all rights reserved.
Schweitzer Klassifikation
Gary Meggitt MA (Oxon), MPhil (HKU), ACII, MCIArb, Associate Professor, The Faculty of Law, The University of Hong Kong. His research interests include ADR, insurance law, civil litigation and professional liabilities.
Acknowledgment
Table of Contents
Table of Figures
Table of Cases
Table of Statutes
Preamble - Mediation, Confidentiality and Privilege
Chapter 1 - An introduction to ADR and mediation
1.1 ADR - A general definition
1.2 ADR in Hong Kong
1.3 Individual ADR Processes
1.4 Mediation - history and current practice
1.5 The 'philosophy' of mediation
1.6 ADR v Litigation
Chapter 2 - What is mediation and ADR privilege?
2.1 The nature of the 'Privilege'
2.2 The distinction between 'confidentiality' and 'privilege'
2.3 Confidentiality
2.4 Privilege
2.5 The Without Prejudice Doctrine
2.6 Rights, balancing exercises and shortcomings
Chapter 3 - The justification for mediation privilege
3.1 The justification
3.2 Approaches across the 'common law world'
3.3 The Wigmore Test
3.4 Abuses and safeguards
3.5 Mediation - a distinct and independent process
3.6 Justifying privilege
Chapter 4 - The application of mediation and ADR privilege
4.1 How issues of 'privilege' may arise
4.2 Mediation
4.3 Arbitration
4.4 Adjudication
4.5 Expert Determination
4.6 Early Neutral Evaluation
4.7 Inconsistency and neglect
Chapter 5 - The Mediation Ordinance and comparable legislation
5.1 Hong Kong
5.2 The United States
5.3 Australia
5.4 England & Wales
5.5 UNCITRAL Model Law
5.6 Mediation - first among equals?
Chapter 6 - Conclusions
6.1 What makes ADR distinctive from litigation and mediation distinctive from other ADR processes
6.2 The principles underlying mediation 'confidentiality' and 'privilege'
6.3 The justification for mediation privilege and mediators' privilege
6.4 Does this justification and these principles apply equally to other forms of ADR
6.5 Do the principles provide adequate practical protection for mediation and other forms of ADR
6.6 The protection of confidentiality and privilege under the Mediation Ordinance
6.7 What other legislative or regulatory provisions are required in order to provide adequate protection of mediation and ADR privilege and confidentiality
6.8 Rebuilding the 'multi-door courthouse'
Bibliography/References
