Cheung Wai Man is a solicitor currently practising as a Consultant at Christopher Li & Co., Solicitors & Notaries in Hong Kong SAR. She is also a General Mediator, accredited by Hong Kong International Arbitration Centre (HKIAC) and a member of The Chartered Institute of Arbitrators (MCIArb.) Below, Miss Cheung speaks to Finance Monthly about her legal practice, and in particular, her mediation work.
What kind of disputes that involve mediation do you handle?
Thus far in my career, I’ve worked on four mediation for litigation cases and have appeared as a party’s legal representative in Financial Dispute Resolution (FDR) hearings before FDR Judge – all in matrimonial cases. When it comes to this type of cases, parties have attempted private family mediation, and a few have been able to reach a settlement. In a few cases, this has resulted in having their terms of settlement reduced in Consent Summons by both parties’ solicitors for the Court’s granting of matrimonial settlement order. Other cases have been settled after one or two FDR hearings without having full trial on the question of ancillary relief. Yet, a considerable number of the cases I have handled are still settled traditionally by without prejudiceMediation has been becoming a popular Alternative Dispute Resolution method in Hong Kong since 2010 when the Hong Kong Judiciary implemented a practice direction to encourage parties to have mediation for court cases before trial, with a view to save time and reduce litigation costs. As it’s been less than a decade since mediation was officially introduced in Hong Kong, there is still a lot that needs to be done in terms of developing our domestic mediation practices.
When is the right time to choose a mediator in a dispute?
Normally, the right time to choose a mediator in a dispute is when documentary evidence relevant to the dispute is disclosed and the parties’ issues and stances in the dispute are known. During this stage, the parties are more likely to have an effective mediation conference to communicate and work on their differences with a view to eventually reach a settlement. Parties can then have a clear idea of what mediation can achieve and choose the mediator based on his/her areas of expertise.
How do matrimonial cases differ from other cases that you’ve worked on?
Matrimonial cases tend to be a bit more personal as the Family Court requires to see a party’s report of their finances or a financial statement. Another thing that is specific to the nature of matrimonial cases is that the general atmosphere during proceedings is quite heated and emotional.
Family mediation during the pre-proceedings stage is highly desirable as this is when parties can have a private and confidential negotiation and overcome their differences, which can result in a quick settlement. A friendlier, more civil approach is obviously advisable for families who have children.
What skills would you say are essential for a good mediator?
I think that in order to be a mediator, one should be able to effortlessly encourage two individuals to communicate with one another. A good mediator needs to be confident, articulate, analytical and persuasive and have excellent listening and summarising skills.
What would be your top advice for managing disputes to the best possible outcome?
My top advice is to make sure to fully understand the parties’ cause(s) and the background of a dispute. Assess the strength of each party’s case. Know each party’s expectation for the outcome of the dispute and the concession(s) that each party is willing to make in order to settle it. Avoid and/or shorten the duration of a litigation proceeding to save time and reduce costs, if there is an ADR method that can be used instead. And lastly, encourage both sides to consider a win-win type of settlement.
Contact details:
E-mail: christine@member.hklawsoc.org.hk
Tel: +852 9238 2475
Emmanuel Ekpenyong is Managing Partner of Fred-young & Evans LP, a full-service commercial law firm and Fred-young Recoveries, an international debt collection firm. He is listed as a foreign associate with James Ling Attorney at Law, China. Mondaq have on many occasions awarded him Contributor with Most Popular Article and Most Reader Response in Nigeria. He is profiled as a National Expert in Getting the Deal Through: Restructuring, Insolvency and Copyright. ACQ5 awarded him, Gamechanger of the year, 2017. Here Emmanuel speaks to Finance Monthly about dispute resolution in Nigeria, the advantage of resolving disputes in the country and his company.
Litigation is often seen as the last resort, what are the viable alternatives to litigation in Nigeria?
Litigation is the most common form of dispute resolution in Nigeria. Its origin is entrenched in the English common law. Oftentimes, litigation is cumbersome because of the ingrained culture of litigation which results in overflow of cases and delay in adjudication, which is not ideal for business and business relationships. The need for a more efficient dispute resolution process has contributed to the prominence of Alternative Dispute Resolution (ADR) mechanisms in recent years.
Nigerian courts through their rules, now encourage litigants to resolve their disputes by adopting ADR mechanisms. The court may, with the cooperation and consent of the parties, refer the parties to ADR centers attached to the court system. If successful, the agreed terms of settlement is adopted as the consent judgment of the court. If unsuccessful, the matter is referred to court for adjudication. In adopting ADR processes, the parties may opt for informal tribunals which use informal mediation processes without possessing a formal structure or formal tribunals using formal mediation processes.
The most known and practiced ADR mechanisms in Nigeria are Arbitration, Mediation and Conciliation.
How does the appeal process work in Nigeria? Are there any advantages to resolving disputes in Nigeria – over and above other jurisdictions?
An appeal against final judgments is brought within 90 days after delivery of judgment and 14 days for interlocutory rulings. The Court of Appeal rules allows an Appellant to bring an application before the appellate court for enlargement of time to file an appeal. An appeal does not operate as a stay of execution of judgment at the trial court; the Appellant has to file for a stay of execution of judgment pending the outcome of the appeal. An appeal is filed against questions of law of the trial court. If an Appellant wants to bring an appeal against questions of facts or mixed law and facts, it must seek and obtain leave of the appellate court.
The parties shall settle the record of appeal at the registry of the trial court and transmit it to the registry of the appellate court. The Appellant shall file its Appellant’s Brief within 45 days after transmission of the record of appeal. The Respondent shall file the Respondent’s Brief within 30 days of receipt of the Appellant’s Brief. The Appellant shall file a Reply Brief within 14 days of receipt of the Respondent’s Brief. The parties shall, at a date fixed for hearing by the appellate court, adopt their respective briefs and the appeal will be adjourned for judgment
What are the advantages of resolving disputes in Nigeria?
Unlike other jurisdictions in Africa, the rules of Nigerian courts encourage and provide avenues for litigants to explore amicable and less acrimonious settlement of their dispute. Nigerian courts uphold arbitration and other ADR clauses and in most instances stay court proceedings pending the outcome of arbitral proceedings. The court system support ADR proceedings by granting necessary interim orders, discovery and enforce arbitral awards in the same way as its judgments.
How does your law firm assist clients involved in commercial litigation? Is there any general advice you could offer clients to prevent the situation from escalating?
We are interested in our client’s business and its business relationship with its customers. This is why we explore amicable settlement of disputes involving our client without compromising their interests. If amicable settlement fails and the parties do not have an arbitration agreement between them, we usually suggest to the parties to sign a submission agreement to enable them submit themselves to arbitration because of its speed and confidentiality. If litigation is inevitable and our client’s claim is a liquidated sum, we save time by commencing a summary judgment proceeding to prevent the proceedings from escalating. If our client is the defendant, genuine admissions and reasonable offer towards timeous resolution of the matter are veritable options.
Litigation can be very costly – how do you evaluate each case to determine the best approach? When is arbitration more appropriate?
Litigation has the potential of resulting in high costs for parties and their businesses because of its unpredictability. Though arbitration is much more efficient in today’s business climate, there are certain disputes that can only be resolved by litigation. Disputes involving moral questions, questions of public law, criminal, matrimonial, insolvency, matters, ownership of land, dissolution of a company and testamentary matters cannot be referred to arbitration. In practice, only contractual disputes are referred to arbitration.
Website: http://www.fredyoungandevans.com
Ijeoma Ononogbu is a London-based Solicitor and an Arbitrator (FCIArb).
She is an international dispute resolution lawyer who has specialised in Alternative Dispute resolution in the areas of investigations and regulations.
Ijeoma is a Director at Dispute Resolver Ltd, an international dispute Resolution service provider available in London for all dispute resolution consultancies, expert views and dispute resolution updates.
In our world, the global demand and interest in alternative dispute resolution (ADR) have led to phenomenal growth in its use by disputants. The popularity of ADR has triggered discussions across the legal profession including the use of mediation, online dispute resolution and hybrid ADR mechanisms such as Med-Arb, Arb-Med-Arb, etc. Here Ijeoma Ononogbu tells us more about it.
What is your role in dispute resolution?
I am a solicitor based in London, primarily a litigator. I work with my arbitration colleagues on matters involving both arbitrations and court processes. Essentially, I am an advocate and an ADR expert, with mostly arbitration expertise in international commercial arbitrations and investment treaty arbitrations. Often, the disputes I work on have some cross-border commercial aspect, usually complex and high-value. Many of my clients are large commercial entities and individuals who expect an exhaustive exploration of (alternative) dispute resolution mechanisms, before the consideration of a court trial. My passion for ADR stems more from a personal intellectual interest and social justice reasons. I subscribe to the use of ADR as a form of dispute resolution because of the ability to assist people, and commercial entities equitably achieve justice.
What made you specialise in ADR
ADR promotes dialogue, which we require in our ever challenging and changing world. The UK dispute resolution market remains predominantly litigation-based, with considerable arbitration work. Many processes are available to disputing parties which are still under-utilised. Consequently, I saw an opportunity for the resolution of disputes other than the use of litigation, arbitration, and mediation. Arbitration is in use by commercial entities, high-net-worth organisations/companies, while mediation, in particular, is heavily supported by the government, judiciary, and experienced advisers, yet it remains under-used. Conciliation and facilitation on the other hand are examples of ADR mechanisms, sparingly mentioned in ADR processes.
Why has there been a surge in hybrid ADR mechanisms?
The growth and development of ADR have led to an expansion of the possibilities within the ADR sphere. This is mainly because of the timely, inexpensive nature of ADR processes, as opposed to litigation. The court process has over the years been subjected to its delays and expensive nature, which made legal practitioners and disputants seek for alternative methods of resolving their disputes. ADR growth in the UK has been phenomenal, with the UK spearheading deliberations on ensuring ADR processes are in conformity with the changing times. The mandatory use of mediation by parties in a divorce and child custody before a court trial is a good example of where the UK has maintained its lead in the use of ADR in the dispute resolution process. On the other hand, mediation was predicted to flourish in Asia but has not so far. Developments such as the Arb-Med-Arb procedure in Singapore, which ensures enforceability of mediated settlement agreements, partnered with UNCITRAL’s plans to develop a law on enforcement of mediated agreements, should help bring mediation to the forefront of parties’ and lawyers’ minds, either as an adjunct procedure or as a process in its own right.
How are ADR processes likely to change?
In recent years, there has been a notable growth and development of ADR mechanism.
Technology is changing virtually every aspect of our human existence. Online Dispute Resolution (ODR) is likely to increase in use over the next two decades. It presents parties with what they usually want for the right cases, given its attraction of a timely reasonable settlement and itsability to cut across jurisdictions. It is now time to see mediation and possibly arbitration enter the mainstream of ODR, after living in the shadows of litigation for a long time. The uniqueness of mediation and arbitration is the fact it gives parties back partial control and flexibility regarding outcomes.
Another trend worth mentioning is the 'Domain Name dispute resolution and mediation'. HKIAC, a service provider in the Asia-Pacific region, has reported a significant surge in domain name dispute resolution and has experienced strong growth in its domain name caseload over the past few years.
Which ADR process is in use more frequently?
In my experience, international arbitration has been the process used more often, although I have increasingly noted the use of other types of ADR processes. However, as a general rule, the expectations of the users of the arbitration process and the sums of money involved lead to the same general structure being adopted.
All forms of ADR, especially international arbitration, involve the parties agreeing to arbitration as the process by which their disputes will be resolved. Typically, the parties also agree on the arbitral rules which will apply and which will form the‘rule of engagement’ criteria. With some institutions that promote competing for arbitral rules and procedural innovations, there is an assumption that the parties under the counsel of their lawyers have chosen the best option available to them or, at a minimum, the ‘least worst’ option. Therefore, the arbitral process evolves to address the individual needs of the users of the process, namely the parties in the dispute.
What would be your top 3 tips on ‘going the extra step’?
Experience shows that it is often the parties themselves who are often the most resistant to ADR mechanisms in their disputes. As a result, I advise from understanding the parties’ psychological state of mind. Consequently, I put all facts and evidence possible, as well as an unforeseeable scenario, before the parties and explain all efforts that will be implored to win the dispute.
Additionally, the use of party conferencing applications through technological platforms is vital. Usually, there is a provision of teleconferencing apps such as WebEx, AnyMeeting, Free Conf, GoToMeeting, Skype, Zoom for parties or witnesses in different jurisdictions. In most instances, the parties are given a choice to make a preferred platform option.
What does a typical day in the office look like for you?
My work follows the general structure of most legal practitioners - one or more rounds of factual witness statements and expert reports, followed by an oral hearing with conclusions by a written closing brief. However, as a general rule, the expectations of parties of ADR demands constant research and reading.
What inspires you to press further into your work?
I specialise in commercial disputes, as I have always been drawn to the complexities of many cases and the challenge of finding ways to resolve these disputes, in the most beneficial way for my clients. Negotiation is under-utilised, however, notably highly valuable for an ADR practitioner. I deal with a broad range of disputes encompassing arbitration, mediation and recently - online dispute resolution. In all forms of ADR, negotiation is the recurring decimal that continues to lead guarantee a positive outcome.
Today, there are highlighted divergent views on the role of legal practitioners. Parties are looking for lawyers to collaborate with them, on the other hand, lawyers see their role as advocates for the parties. As such, the expectation for a timely delivery is one party are unable to compromise. The feeling of self-satisfaction after a good, well-executed work is indescribable. In the legal profession, one is evaluated by the last case - success or failure, regardless of the circumstances.
The legal and cultural diversity of parties and counsel in international arbitration continues to create a source of issues to address. As a result, there are new opportunities with each new case to develop procedural solutions to suit the matter. The various global legal system means that one is always self-educated, for the success of a case is largely dependent on additional knowledge. A personal work mantra for me is: “Efforts are commendable; Results are the ultimate.” which continues to be one of my guiding principles.
Challenges for the growth of ADR
- Lack of establishing and maintaining appropriate standards of independence of arbitrators in international arbitration.
- Insufficient regulations in ADR processes, such as Conciliation etc.
- Challenge distinguishing Investor-State Arbitration from International Commercial Arbitration given the debate swirling around Investor-State arbitration.
- Lack of appropriate standards of independence of arbitrators.
- Delay in the delivery of Arbitral Awards.
Solution to the growth and development of ADR
The crucial element is the maintenance and growth and development of ADR processes, such as International arbitration for the settlement of international commercial disputes. The requirement of hard work by everyone in the ADR field, to ensure the continued legitimacy of the process in the eyes of the user and their representative. The Global Pound Conference Series (GPC) in London on the 6th July 2017 will facilitate the development of dispute resolution in the 21st century.
CONTACT DETAILS
www.disputeresolver.uk.com
ijeoma@disputeresolver.uk.com
