HAK TUNG ALFRED TANG v. BLOOMBERG L.P. (a firm) AND ANOTHER

HCA198/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 198 OF 2010

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REASONS   FOR   DECISION

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Introduction

1.  This is a defamation case. The parties have agreed to attempt mediation to resolve their disputes. The parties have been making arrangements for mediation and the process is interrupted because they are unable to agree the minimum level of participation.

The Application

2.  This is an application of the 2nd defendant to this court for directions under paragraph 13(1) of the Practice Direction 31 for mediation ( the Practice Direction). The parties agree that this court has the jurisdiction to give directions, which will be binding on the parties by their agreement. This is on the understanding that once this court has given the direction on the minimum level of participation, the parties should follow the court’s direction. But the parties are still at liberty to determine whether they may have mediation to resolve their disputes. Whether or not such decision amounts to reasonable explanation for not engaging in mediation when the court determines any adverse costs order against a party under paragraph 5 of the Practice Direction is something for the trial judge to consider.

3.  The 2nd defendant’s summons has set out 4 directions. They are on the choice of the mediator, the venue, the sharing of the fees and lastly the minimum level of participation together with other miscellaneous related issues.

4.  The parties have now agreed that they have no dispute over the other issues other than the minimum level of participation. I will therefore make an order in terms of paragraph 1 to paragraph 3 of the 2nd defendant’s summons.

The issue of minimum level of participation

5.  I shall now deal with the minimum level of participation.

6.  The 1st defendant is neutral on this issue. This is an issue between the plaintiff and the 2nd defendant only.

7.  For this application, the 2nd defendant and the plaintiff have prepared their affidavits. The plaintiff’s affidavit has not been filed. But this court has considered the contents without objection from the defendants.

8.  The plaintiff’s primary concern is the actual time, in terms of hours, for the minimum level of participation in order to comply with the requirements under the Practice Direction. For this issue, the 2nd defendant had sought advice from the mediator, at the present stage without delivering any papers to her in order to save costs. The mediator was unable to give any concrete figure in term of hours as the minimum level of participation because she has no idea of the issues of disputes between the parties and how difficult they are in the negotiation. I consider that the mediator is fair to point out to the parties her difficulty.

9.  The 2nd defendant has proposed to adopt the proposed standard term for minimum level of participation set out at the footnote in Appendix C of the Practice Direction, which provides, inter alia, that the parties should participate in the mediation up to and including at least one substantive mediation session (of a duration determined by the mediator) with the mediator.

10.  Mr. Li, who acts for the plaintiff submits that the plaintiff is not concerned about money as he has a lot of money. He is more concerned with his time because he has to shuffle between Hong Kong and the mainland for business. He considers that it is not acceptable to allow the mediator unlimited power to call meetings for the mediation from time to time. The plaintiff said in his affirmation that he did not mind to have 3 hours for the mediation.

Discussion

11.  In my view, parties should take a trusty stance for the mediation and they should have confidence in the mediator, who has no interest in the matter herself. Her primary function is to facilitate the parties to settle their disputes and she has to undertake her duties as a professional mediator. The minimum level of participation should not be construed as the number of hours of mediation. But rather, it is a requirement of the showing of sincerity on the part of the parties taking part in mediation. I consider the quality, rather than the quantity of mediation, should count. If parties are sincere in resolving their disputes by mediation, the mediation may take a very short period of time. On the contrary, if they are not sincere in mediation, the length of the mediation will not assist them.

12.  In my opinion, the plaintiff should have confidence to rely upon the mediator to determine the length of the mediation. After all, mediation is a voluntary exercise of the parties. Any party who considers that mediation is not helpful or cannot assist the parties to settle may terminate the mediation at any time. Whether such decision is a reasonable decision or whether such conduct is a sincere and genuine attempt on mediation is for the trial judge to decide at the end of the trial.

Decision

13.  For the reasons above, I direct that the minimum level of participation should be the standard term in Appendix C of the Practice Direction, viz: the parties shall participate in the mediation up to and including at least one substantive mediation session (of a duration determined by the mediator) with the mediator.

14.  I should also point out that the parties who are agreeable to adopt mediation to resolve their disputes should adopt a more flexible and cooperative attitude in the arrangement of the mediation so as to save time and costs.

15.  I shall now make the order in terms of the following:

(1) There be an order in terms of paragraph 1, paragraph 2 and paragraph 3 of the summons;

(2) The minimum level of participation shall be “the parties shall participate in the mediation up to and including at least one substantive mediation session (of a duration determined by the mediator) with the mediator.”;

(3) By consent, costs of this application be in the cause of the Action.