With multiple positions to juggle, industry changes to stay on top of and a hectic travel schedule, Dr. Francis Law is a busy man. As President of the Academy of International Dispute Resolution and Professional Negotiation, Chairman of the International Dispute Resolution and Risk Management Institute and President of the Hong Kong Mediation Centre, he is used to overcoming challenges in a way that satisfies both parties. The dispute resolution expert recently sat down with Hong Kong Lawyer to speak about what drives him, the benefits of mediation and why Asian countries need to have a voice to ensure mediation conventions support a truly global economy, and Hong Kong’s role as a disputes hub.
When Dr. Law first came across the idea of mediation, it was something of a magical concept. A legal process that left clients, formally locked in disputes, with a sense of satisfaction positively “amazed” him. The root of mediation impressed him further.
“Mediation actually comes from China, from a long time ago, about 2000 years,” says Dr. Law, noting that the way mediation is carried out and conducted has changed across that time, but its early Chinese roots also played a role in prompting his interest in the field.
Originally studying business management, it wasn’t long before the natural scholar sought to further expand his knowledge. With qualifications from Leicester University, Hong Kong Polytechnic University, Nottingham Trent University and Renmin University of China, Dr. Law has spent his fair time within the higher education system, which is perhaps why he’s so passionate to increase the general public’s understanding of the benefits of the dispute resolution process and share his own understanding with a large audience.
Today, he still looks back on his earliest experiences as crystallising all the elements he continues to enjoy about mediation today. “The first time I took on a mediation case, there was a longtime relationship that was damaged, so when I resolved the dispute in two weeks, I felt like I had really helped people,” he says, noting that this feeling of satisfaction is one of the perks of this type of work.
“In litigation lawyers set themselves as an enemy, they find bad things and weaknesses, but for mediation we just try to find a way to collaborate to find a solution and which really works, to offer relief to both parties.”
With this mindset driving the mediators’ approach, the outcome is assuredly a win for all involved. “The moment they agree to all the terms, clients say ‘thank you’ to the mediator. They are really relieved about the outcome, and that’s what impressed me most. The feeling is also very much a reward for your effort, it’s a non-monetary reward, but having that feeling resonated with me,” he says.
Another important consideration, when it comes to mediation, is the way it can be used as a tool to manage difficult, often emotional, family cases. Dr. Law also has experience in this field, noting that an aggressive approach through the court system “will hurt the whole family”. He recalls one case where a family had been fighting for more than 20 years over financial matters and couldn’t stand to be in the same room as each other in the lead up to their mediation sessions.
“When I finished the whole process of mediation and finally got a solution, a settlement, they felt good about it. They found that finally, they get their family back. They were not talking about money, at that time, they were talking about the love and the relationships being rebuilt. For mediators, I suppose, that result is one of the most important things.”
As well as taking on such sensitive cases, Dr. Law says pro bono work for those in need and carrying out work for charitable organisations are among the other ways that mediation can be used as a powerful tool for positive change.
Hong Kong’s Role
Hong Kong, of course, has a positive reputation for mediation, but it’s also an exciting time for development in the field, and overall maturing of the industry. There are different types of mediation still used in Hong Kong, Dr. Law says, noting that “Typically, Hong Kong advocates the facilitative approach, which does have its own pros and cons,” but, this isn’t the only method which is used in the city. Dr. Law weighs up the options.
“Evaluative mediation provides advice for clients or parties; which choice is best for them, which one is suitable for them even though the final decision is made by the parties, but during the process, the evaluative model of mediation will help the party to resolve the problem while giving their professional advice. That resolution will be very fast, because you have expert advice. Say I have a construction problem I find a mediator with a construction background, he can provide all the advice, not only legal, but also details as a construction professional. This advice will make resolving the dispute very fast,” he says.
But while this may be a faster process, there are risks which can emerge. “On the other side, there is great criticism for this approach. First, the party may be to a certain extent being influenced by the mediator. This is unavoidable, the mediator will have their own professional bias, they will decide which choice is wrong, which one is right,” he adds.
The key challenges which can arise from such an approach are, namely, the danger of influencing clients into making decisions they may not fully choose. This often happens afterwards, says Dr. Law, when the parties reflect on the outcomes, outside the heat of the moment.
“When the party is going back and considers the whole process, they find they are not satisfied – most of the time,” Dr. Law says.
“That model of mediation has limitations because they really have to rely on the mediator’s professionalism not only on mediation, but on their own respective position,” he explains, noting that this model is “fast and effective, but it’s not safe”.
Because of these risks, Hong Kong promotes the facilitative model of mediation so “the mediator will be an expert in mediation. They will have the skills the process and understanding.” Also, importantly: “They will not give advice at all,” Dr. Law says.
Change on the Way
But, for mediation in Asia, further change is on the way. The new Mediation Convention also know as the “Singapore Convention”, which many predict will be an international answer to the enhancement of the New York Convention.
Dr. Law says that while mediation has been limited by it not being able to be enforced across other jurisdictions in the past, the Singapore Convention will change this. “With this convention, like an arbitration award, the mediation settlement from one place will work in other places provided they are a signatory country or place,” he explains, adding that because of this, internationally, “people will consider using mediation much more”.
“Arbitration has been working really well in the past 61 years, but the problem is there is still a lot of blame or criticising of arbitration awards. People will be looking more to mediation because it’s a non-adversarial approach; people aren’t fighting with each other, they’re looking for collaboration.”
This approach and new convention will particularly serve Asian countries, Dr. Law says.
“The Asian mediation culture stems back over 2000 years,” he explains, noting that “in the West, they have taken the theory or concept and built it in a systematic way – in the U.S., the UK, Europe or Australia.”
But this has also left Asia out of the development process, Dr. Law says.
“Asia, and China, has a long experience using mediation, but in the past Asia has not really participated in drafting international Conventions. The U.S. and UK, will formalise an international contract or convention, and the participation for the oriental countries, like China, Thailand, Philippians is very limited; it’s was a no at that time,” he says.
Because of this, there has been a time period of 61 years where Asian countries haven’t been able to participate in such decisions, Dr. Law says, adding that the Singapore Convention will help elevate Asian voices and ensure the process considers other approaches and ways of working.
“In the past, these countries or places haven’t had any representation in the formalisation of the convention; your voice has not been listened to, your voice hasn’t been there. You’re not there, so your voice won’t be heard,” he says, adding that this hasn’t come from a “particular bias, they just don’t consider you voice”.
“That’s why this is important, because this time we bring Asian voices and consideration of these cultures in this convention, which is fairer for Asian people and the Chinese.”
Growing in Popularity
Hong Kong is an important hub for mediation globally, but particularly in Asia. As the reputation of mediation grows, so does Hong Kong’s role, says the mediator.
“Mediation is getting more important, more people are recommending the use of mediation. Hong Kong being the very important part of China, which can be made use of as a hub. The government has already announced that Hong Kong is the leading international dispute resolution hub,” Dr. Law says.
“For mediation Hong Kong has been the leading place for providing professional mediation service, while this isn’t understood by most Hong Kong people, in the international sphere, we are very famous for this as a leading place in the world.”
With Hong Kong playing such a significant role, it’s little wonder that Dr. Law is so busy in his work. One of the most important aspects of his role is to promote education and stimulate greater awareness of mediation and Hong Kong’s position. These are also some of his greatest challenges.
“There are a lot of challenges actually, because our ideas are really new, innovative ones. These are not easily understood by the general public. There are also professionals who still don’t understand this. Because of this, we have to take a lot of time to give talks, to train them to let them know how to work with mediation,” he says.
But challenges still exist. In the past mediation wasn’t viewed as a professional avenue, despite the fact that mediators undertake ongoing training and assessments – much of this provided by Dr. Law.
“Every year my time is spent like this: one third in Hong Kong, over 40 percent in mainland China, and the rest of the time is spent on worldwide travel,” he says, noting that because of this, “time is a constraint for me”.
“On average, I will conduct over 55 talks a year, I’m also the assessor, and the trainer on how to conduct the assessment,” he explains, noting that he also collaborates with other Asia-based organisations and government bodies throughout his work. On top of such a demanding schedule, Dr. Law also spends much of his time on the road, promoting mediation and Hong Kong’s expertise in the field.
While mediation is an increasingly popular method, when it comes to using it as a tool, there are a number of factors which are important to consider.
When it comes to mediation ‘dos and don’ts’, Dr. Law is able to offer candid advice. It’s important, he says, for the parties engaged in mediation to think about the matter strategically and be “very clear about their interests and also ensure they have sufficient information before going in to do the mediation, what is the advantage for them”.
But, he adds that it’s important not to think about the process in terms of just winning or losing – this mindset will only result in losers, he says. Thinking in a one-sided manner when entering a negotiation is a recipe for trouble. “It’s only by understanding the other party’s interests, can you “lead them, or inspire them to accept your offer,” he says.
“Actually, in this process, we will suggest the party not only consider their own interests and needs, but also the risks, and then those of the other side. The process of negotiation is that you have to convince the other side to accept your offer,” he explains.
“If you only look into your interests, you can’t succeed, because no negotiation will have a deal that just satisfies one side’s interests. So, you have to be openminded and what you have to consider is the advantage of using this approach and what style you prefer. You also have to think of the risks,” he adds.
It’s exactly this way of thinking, which makes mediation such a valuable tool for commercial disputes as well as family troubles. The ability to maintain relationships and build on outcomes positively and continue to collaborate once the dispute is resolved is key.
“You can maintain the relationship with mediation, and that is of particular interest for both parties in most cases,” says Dr. Law. “You are at liberty to choose all the things in the process of mediation, so don’t have the mindset of winning. If you don’t have the mindset of how to win, you can really think about how to achieve your best interests, then find a lawyer that knows mediation, because there’s a difference between a litigation lawyer and a lawyer who knows mediation. Litigation is about arguing with the other side, it’s not building a relationship,” he says.