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The Interim Report placed before consultees six options for how the court should
approach alternative dispute. These involved :-
(a)
a statutory rule which makes ADR compulsory for particular types of cases;
(b)
a rule whereby the court may order the parties to engage in ADR;
(c)
a rule making ADR compulsory where one party elects for ADR;
(d)
a rule enabling the Director of Legal Aid to limit legal aid to ADR in
appropriate cases, making an attempt at ADR a condition of any further legal
aid;
(e)
a rule making an unreasonable refusal of ADR or uncooperativeness in the ADR
process the basis for making an adverse costs order; and,
(f)
an approach whereby the court's role is limited to encouraging and facilitating
purely voluntary ADR.
The Final Report focusses particularly on mediation, but intends the discussion to take
in all relevant forms of ADR.
Five general concerns or objections were voiced in the consultation process touching
upon (i) the constitutionality of making access to the court conditional on undertaking
mediation; (ii) the duty of the court to resolve disputes rather than sending parties
elsewhere; (iii) the adequacy of mediation services in Hong Kong; (iv) the inherent
probability of failure where mediation is other than voluntary; and (v) the risk of
incurring additional costs where mediation fails. The legal aid proposal was also
thought by some to be discriminatory against poorer litigants and the costs proposal
thought to be of doubtful workability.
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