Mediation in Asia

ADR-in-Asia

Herbert Smith Freehills’ Hong Kong office has launched its first ADR in Asia Guide, with emphasis on mediation in Hong Kong. Through direct interviews captured in the Guide and anonymous voting via a bespoke HSF iPad app at the Guide launch, they have surveyed around 100 international corporates on their use of mediation in Hong Kong.

The full report is a good read and if you want it you will need to make a request to HSF at asia.publications@hsf.com

In the meantime, key findings include;

  1. 43% of users who voted via the iPad app regard cost and time savings as the greatest benefit of mediation, followed by the range of outcomes – some not possible through the courts.
  2. Organisations defer to their external lawyers when it comes to considering mediation, when and how to deploy it, and who to appoint as a mediator. This places considerable responsibility on the legal advisor as a stakeholder to mediation success.
  3. The clients surveyed and those who voted via the iPad app, want a mediator who commands the respect of the parties and has gravitas. 47% of those who voted through the iPad app said they relied on recommendations from contacts in the market and 38% deferred to the advice of their external lawyers.
  4. A number of those surveyed noted that evaluative mediators often added more value as they would robustly test the counterparty’s case. Several found that a purely facilitative mediator was too passive and did not gain the respect of the parties.
  5. 50% of the clients interviewed and 56% of those who voted via the iPad app said the most important aspect of mediation was the mindset of the parties. 18% of those voting via the iPad app said timing was the second most important. An early mediation, forged on too little information, is less likely to succeed. A mediation very late in the day occurs when significant costs (eg of discovery, witness statements, trial preparation) have already been incurred.

HSF comments;

“Our research highlights that, when undertaken meaningfully, and at the optimum time, mediation forces everyone into an earlier appraisal of their case. Those surveyed generally said that around 50% of their mediations settled (which accords broadly with market trends for commercial disputes). Those which failed were very often helpful however – in gaining intelligence, promoting engagement with the case, narrowing the issues, or assessing the approach of the counterparty and their external lawyers”

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