Abstract
Commercial mediation is regarded as one of the most significant parts of
diversified dispute resolution mechanisms, since it has unique advantages compared
with “adversarial” dispute resolution mechanisms, such as litigation and arbitration,
particularly in cross-border disputes. With the support of official guidelines and the
implementation of local governments, it is observed that mediation has become a
popular alternative dispute resolution method applied by more and more citizens in the
GBA. In addition, China became a member state of the Singapore Mediation
Convention in 2019, which demonstrates that China attaches great importance to
mediation mechanisms, with both academics and professionals recognizing the unique
role of mediation in the process of dispute resolution. Against this backdrop, this article
focuses on the implications of the Hong Kong experience to the development of
commercial mediation in the Mainland, which revolves around four aspects:
voluntariness of mediation activities, confidentiality rules, the enforceability of
mediated settlement agreements and capacity building of mediators. Due to the great
disparity in the development of commercial mediation in different GBA regions,
particularly in terms of rule frameworks and patterns of mediation, this article argues
that the future development in the GBA of commercial mediation can refer to the Hong
Kong experience in the following four respects. Firstly, the principle of voluntariness
should be enhanced in the conduct of commercial mediation; Secondly, provisions of
confidentiality and detailed provisions for breaching the confidentiality principle
should be formulated in commercial mediation; Thirdly, a uniform rule framework to
govern the mutual recognition and enforcement of commercial mediated settlement
agreements across the GBA should be provided. Last but not least, a uniform mediator
evaluation system and a mediator qualification certification platform should be
established in the Mainland.