The Background

Mediation is a process whereby the parties to a dispute are assisted by a neutral third person, the mediator, who assists in resolving the dispute. Mediation is unique because it is a consensual process and it gives the parties the opportunity to voice their grievances in a controlled and safe environment. In this environment, they can clear up misunderstandings, rebuild communication channels and repair relationships, which litigation is sometimes not able to achieve. In the long run, mediation can save legal, social and human costs. This is especially true not only in the business environment, but also in the family arena.

The Case

The following case example demonstrates the unique therapeutic function of family mediation. It involves a dispute between a married couple who quarrelled over the way they should discipline their children.

The husband works in a law firm and the wife is a teacher at a well-known institution. They have two young children, a boy and a girl.

The husband believed that discipline is good for the children and would not hesitate to smack the bottoms of his son and daughter if he felt it was needed. The wife, however, believed that violence only generates more violence and thought that children should be taught by way of encouragement.

On one Sunday afternoon, the family went on an outing to a shopping mall. During the outing, the husband received a call from one of his clients which resulted in him having to leave at once. However, the young son refused to leave and threw a tantrum. Out of frustration, the father smacked the child's bottom before handing him over to his wife and leaving.

The wife was very upset and called the police. The police later contacted the husband and gave him a verbal warning. The husband was upset by his wife's action and, as a result, they had a big fight and contemplated divorce.

The husband, however, was fully aware that a divorce would only harm their children more, so he decided to seek professional help. He eventually contacted and arranged a meeting with a family mediator together with his wife.

The Mediation

Throughout the meeting, the mediator encouraged the parties to fully express their feelings and, with the mediator's help, the husband and wife eventually opened up to each other and began to talk in a constructive and friendly manner.

It turned out that the disciplinary issue with the children was a reflection of feelings of which both were previously unaware. The husband and wife began a constructive dialogue and eventually formulated a parental plan, together with measures to save their marriage.

As we can see, mediation has a therapeutic function and can rectify miscommunication, improve human relationships, disclose deep-seated problems and formulate action to resolve them. In many cases, mediation can achieve better results than litigation and is often the preferred method to resolve certain disputes, including business ones.

William Kong Chung-yau is a committee member of the Family Mediation Interest Group of the Hong Kong International Arbitration Centre’s Hong Kong Mediation Council

The information contained in this article should not be relied on as legal advice and should not be regarded as a substitute for detailed advice in individual cases. If advice concerning individual problems or other expert assistance is required, the service of a competent professional adviser should be sought.