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TERMS OF REFERENCE OF JOINT MEDIATION HELPLINE OFFICE IN RELATION TO MINOR DISPUTES MEDIATION PILOT SCHEME
(Effective from 3 December 2015)
Section One – Definitions
Applicant means a person making or who had made an Application to the Joint Mediation Helpline Office (“JMHO”) under Minor Dispute Mediation Pilot Scheme (“MDMPS”).

Application means an application filed by an Applicant under the MDMPS.

Article means a term and/or condition set out in these Terms of Reference.

Board means the board of directors which is the governing body of the JMHO.

Eligible Disputant means a person who meets the eligible criteria set out in Article 10 of these Terms of Reference and who initiates the process of Mediation under the MDMPS

Eligible Dispute means a dispute which fulfils the requirements set out in Article 9 of these Rules and to which the MDMPS applies.

HKSAR means the Hong Kong Special Administrative Region

JMHO means the Joint Mediation Helpline Office, a non-profit making company limited by guarantee incorporated under the laws of Hong Kong.

List of Mediators means the JMHO’s list of mediators for the MDMPS.

MDMPS means the Minor Dispute Mediation Pilot Scheme for managing and resolving Eligible Disputes administered by the JMHO;

Mediation means the process of mediation of a dispute under MDMPS, which is a confidential and consensual dispute resolution process, in which the Mediator, without adjudicating the dispute or any part thereof, facilitates the Parties to identify the issues in the dispute and reach a negotiated settlement thereto.

Mediator means a person who is suitably qualified and is appointed in accordance with Article 12 of these Terms of References to act as a mediator.

Party means an Eligible Disputant or a Respondent.

Participating Service Provider (PSP) means the member organizations of JMHO which provide mediation services to members of the public.

Respondent means a person or an entity against whom an Application under the MDMPS has been filed by an Applicant.

Response means a reply by a Respondent as to whether he accepts or refuses to participate in a Mediation under MDMPS.

Scheme Officer means any person employed by the JMHO who acts as a case manager responsible for addressing enquiries, gathering information and vetting applications to decide whether an application should be accepted under the MDMPS in accordance with these Terms of Reference;

Specified Mediation Time means the 4 hours allocated for Mediation under these Terms of Reference;

The Jockey Club mean the Hong Kong Jockey Club Charities Trust, the funding organization of MDMPS.
Section Two – Effect of these Terms of Reference
1.
These Terms of Reference are binding upon the following classes of persons and entities as defined in Section 1:
  • Applicant;
  • Eligible Disputant;
  • PSP;
  • Respondent; and
  • Mediator.
2.
For the avoidance of doubt, the interpretation accorded to these Terms of Reference by the JMHO shall be final and conclusive.
Section Three – Objectives of MDMPS
3.
The JMHO introduces the MDMPS for a period of 2 years which aims at promoting the use of mediation to resolve minor disputes which could not be otherwise resolved by the parties thereto efficiently due to costs and other limitations.
4.
The main objectives of the MDMPS are:
  1. to provide dispute resolution service at a proportionate cost so as to encourage more people to use mediation before going to the court.
  2. to foster a harmonious society by helping parties to preserve relationship
  3. to serve people with limited financial means to resolve disputes
5.
With the implementation of this MDMPS, JMHO will be motivating mediators to provide services for better harmony of society, to lend their knowledge in volunteering, and achieving improvement of the quality of life of Hong Kong people.
Section Four – Application Rules
6.
Submission of the Request for Mediation Form
  1. To submit an Application, an Applicant should fill in the MDMPS Request for Mediation Form, clearly listing out the issues in dispute and the amount in dispute (if any), as well as attaching the relevant documents relevant to the Dispute.
  2. An Applicant should pay an application fee to the JMHO upon submission of the MDMPS Request for Mediation Form.
  3. An Applicant shall submit the documents/ declaration for proofing his/her eligibility under MDMPS.
  4. The Applicant may give consent to the JMHO to share the information provided in the MDMPS Request for Mediation Form with the Respondent, potential mediators to be nominated and the mediator appointed for the Dispute and for the JMHO to use the information for research, evaluation or educational purposes in accordance with the Law of Hong Kong
  5. Free consultation session by JMHO may be provided to the Applicant or the Respondent to conduct preliminary screening as to whether a case is suitable for mediation under the MDMPS, clarify issues in dispute and prepare parties for the main mediation session or other things incidental to the conduct of mediation;
7.
Role of the Scheme Officers
  1. Upon receipt of the MDMPS Request for Mediation Form and the application fee, the JMHO shall issue an acknowledgement of receipt to the Applicant.
  2. The Scheme Officer may require an Applicant to provide further information that is considered necessary to assess whether the application fulfils the conditions as an Eligible Dispute. The Party must comply with the request within the timeframe specified by the JMHO.
  3. The Scheme Officer shall consider, having regard to Article 9,10 and 11 of these Terms of Reference and with due reference to the definitions of Eligible Dispute and Eligible Disputant, whether to accept or reject the application.
8.
Procedures for accepting or rejecting an application
  1. After the Scheme Officer decides to accept or reject an application based on Articles 9, 10 and 11 of these Terms of Reference, he will accordingly advise the Applicant and the Respondent, and where appropriate, any other parties concerned.
  2. If the Applicant objects to the decision made by the Scheme Officer, the Applicant can make representations to the JMHO Board within 21 days from the date of receipt of the Scheme Officer’s decision.
  3. The Board shall review the decision of the Scheme Officer to accept or reject any Application where necessary.
  4. For the avoidance of doubt, all decisions made by the Board shall be final and conclusive and shall not be challenged by the Applicant or the Respondent.
Section Five – Mediation Rules
9.
Eligible Dispute
Eligible Dispute refers to a civil dispute arising from a recognized social or legal relationship with or without a monetary element. Where a monetary sum is involved, it shall not exceed HK$100,000. The “recognized social or legal relationship” under MDMPS are:
  • Neighbours
  • Family Members
  • Landlords and Tenants
  • Employers and Employees/ Co-workers
  • Tortfeasors and Victims in accidents
  • Parties to a contract for goods and/or services
  • Agents and Principals
  • Financial institutions and clients
  • Telecommunication companies and clients
  • Parties involved in disputes concerning reputation or intangible assets.
10.
Eligible Disputant
  1. An Eligible Disputant refers to an individual who is already receiving one of the following allowances or subsidies from the HKSAR Government as proven by original documents issued by the HKSAR Government:-
    • Social Security Allowance (SSA) Scheme (including Normal Disability Allowance/ Higher Disability Allowance/ Old Age Allowance/ Old Age Living Allowance);
    • Comprehensive Social Security Assistance (CSSA) Scheme;
    • Self- reliance (SFS) Scheme;
    • Traffic Accident Victims Assistance (TAVA) Scheme;
    Or
  2. An individual who’s monthly income does not exceed HK$25,000.
11.
Guidelines for Case Intake
The Scheme Officer of JMHO shall NOT accept an application if one or more of the following criteria are met:-
  1. The applicant is not an Eligible Disputant;
  2. The dispute is not an Eligible Dispute;
  3. The nature of disputes is purely monetary in nature: e.g. general debts, policies in relation to fees, charges, levy, or investment loss without a contractual or tortuous element;
  4. The dispute is not genuine or is frivolous or without substance;
  5. The dispute involves complicated legal matters, domestic violence or alleged criminal offence or conduct;
  6. The dispute is about the exercise of power/discretion of government departments;
  7. The dispute is about policy matters of an organization and there is no allegation of mal-administration, material non-disclosure or negligence;
  8. The dispute is already a subject matter of the Consumer Council, the Ombudsman, Equal Opportunities Commission, Building Management Mediation Coordinator’s Office of the Lands Tribunal, Family Mediation Coordinator’s Office of the Family Court, Financial Dispute Resolution Centre, or any other statutory bodies.
12.
Appointment of Mediator
  1. JMHO has the sole authority to maintain the List of Mediators and to admit any person suitably qualified onto the List of Mediators as it sees fit.
  2. The Applicant and the Respondent may agree on the appointment of the Mediator from the List of Mediators provided by JMHO or request JMHO to appoint a Mediator.
  3. Upon receipt of the Application and the Response, and where the Respondent accepts Mediation under MDMPS, JMHO shall appoint Mediator(s) from the List of Mediators within 14 days from the date of receipt of the Response, taking into account the Parties’ preference as far as practicable and shall confirm in writing to the Parties the appointment of the Mediator.
  4. The appointment of the Mediator takes effect upon confirmation in writing by JMHO.
13.
Roles of Mediator and the Parties
  1. The Mediator appointed shall conduct the Mediation with due care and skill, in accordance with the Hong Kong Mediation Code and in such manner, as he or she considers appropriate, taking into account the circumstances of the case, the wishes of the Parties and the need for a speedy settlement of the dispute.
  2. The Mediator may communicate with the Parties together or with any Party separately, including private meetings and each Party shall cooperate with the Mediator. A Party may request a private meeting with the Mediator at any reasonable time. The Parties shall give the Mediator full assistance to enable the Mediation to proceed and be concluded within the time specified.
  3. In the event that there is no overall settlement agreement reached, the Mediator, with the consent of the Parties, may assist the Parties to narrow down the issues in dispute for use in subsequent proceedings (if any), where appropriate (if any).
14.
The Mediation Process
  1. The Mediator shall commence and conduct the Mediation as soon as possible after his or her appointment and shall use his or her best endeavours to conclude the Mediation within 21 days of his or her appointment.
  2. Unless otherwise agreed by the Parties and the Mediator, Mediation meeting(s) in respect of an Eligible Dispute under MDMPS should not last longer than the Specified Mediation Time, and there shall be no legal representation at the mediation session.
15.
Termination of the Mediation
The Mediation process shall come to an end:
  1. upon the signing of a settlement agreement by the Parties; or
  2. upon the written advice of the Mediator after consultation with the Parties that in the Mediator’s opinion further attempts to resolve the disputes by Mediation are no longer justified; or
  3. upon written notification by any Party at any time to the Mediator and the other Party that the Mediation is terminated.
16.
Confidentiality
  1. The Parties and the Mediator agree to abide by sections 8-10 of the Mediation Ordinance (Cap 620) and in any event shall not to disclose, transmit, introduce or otherwise use any opinions, suggestions, proposals, offers, or admissions obtained or disclosed during the Mediation by the Parties or the Mediator as evidence in any judicial proceedings, arbitration or other proceedings, unless agreed in writing by the Mediator and the Parties to the Mediation or compelled by law.
  2. The fact that a mediation has occurred or is continuing or that there is a settlement of the Eligible Dispute shall not be considered confidential.
  3. The JMHO may publish data about Eligible Disputes for research, evaluation or educational purposes. The nature and format of such publication may include summary of statistics by sectors or nature of cases and any synopsis of individual cases without revealing, or being likely to reveal, directly or indirectly, the identity of the Parties.
17.
Language of Mediation
The language of Mediation shall be decided by the Mediator, taking into consideration the Parties’ preferences as far as practicable.
18.
Mediator’s Role in Subsequent Proceedings
The Parties undertake that the Mediator shall not be appointed as arbitrator, representative, counsel or expert witness of any Party in any subsequent arbitration or judicial proceedings whether arising out of the Mediation or any other dispute in connection with the same dispute. No party shall be entitled to call the Mediator as a witness in any subsequent adjudication, arbitration or judicial proceedings arising out of the same dispute.

19.
Exclusion of Liability
The Parties jointly and severally release, discharge and indemnify JMHO, its directors and/or employees and/or agents and/or members and the Mediator in respect of all liability whatsoever, whether involving negligence or not, from any act or omission in connection with or arising out of or relating in any way to any Mediation conducted under these Terms of Reference, save for the consequences of fraud or dishonesty.
20.
Disclaimer
JMHO provides the List of Mediators for the purpose of providing information about mediators who are willing to act as mediators under the MDMPS, and who have attained recognised professional qualifications in mediation. JMHO does not in any way warrant, guarantee, or endorse the capabilities or suitability of any particular mediator on the List of Mediators to act as a mediator in any particular dispute. All complaints against a mediator under the MDMPS shall be referred to the respective PSP of which the mediator is a professional member, or the Hong Kong Mediation Accreditation Association Limited where appropriate.
Section Six – Fees and Costs
21.
Fees
  1. Application Fee
    Each party to a mediation under MDMPS shall pay an application fee of HK$200 to avoid abuse of service.
  2. Honorarium for Mediators
    The appointed mediator under MDMPS will receive an honorarium of HK$1,000 for a mediation session with specified mediation time per case (in case of appointing more than one mediator, the honorarium will only be paid to the mediator acting as a mentor). The honorarium is funded by the Jockey Club. If the duration of a mediation session exceeds the Specified Mediation Time, subject to the agreement JMHO, the Eligible Disputant, the Respondent and the mediator, the extra mediation shall be conducted on a pro-bono basis.
  3. Venue Fee
    The venue fee will be funded by the Jockey Club under the MDMPS, is limited to Specified Mediation Time per case. If the duration of mediation session exceeds the Specified Mediation Time, subject to the agreement between the Eligible Disputant, the Respondent and the Mediator, the venue fee shall be equally shared by each party.
 
   

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