The University of Hong Kong

Department of Law

Academic Year of 2022-2023

Examiner’s Report

[This report will be posted onto intranet after the release of exam results]

Course code: LLAW6161 Course Title: Mediation

Report prepared by: Jessica Ho Date: 9 January 2023

MEDIATION ROLE PLAY SIMULATION (50% of Final Grade)

Role play performance was good overall. Students demonstrated awareness of what mediation is, the
role of the mediator and the mediation process in their Opening Statements. All students attempted
to exercise some of the micro skills taught on the course, with the more skilled students utilising the
relevant skills at the appropriate stage.

Those who scored higher grades followed the process model diligently and showed a clear
understanding of the purpose of each stage of mediation. Those who scored lower grades were not
as effective at using their doubt creation and reality testing skills to assist the parties to change their
perspectives during the latter half of the mediation process.

To improve performance, students should:

• Understand that mediation is a form of interest-based negotiation (as opposed to positional
bargaining).
• Develop their questioning skills to assist the parties to:
o uncover their underlying needs and interests;
o challenge their assumptions and beliefs; and
o consider consequences and alternative options.

RESEARCH ASSIGNMENT (50% of Final Grade)

There were two groups of students this year. Each group was assigned a different Research
Assignment topic.

Group 1

“As mediation grows increasingly more internationalised, differences in practice, culture and
communication become more prominent. Explore how technological advancements and developments
in international mediation law and practice have had an impact on the changing profile of cross-border
disputants and challenged the conventional approach of face-to-face mediation.”

Group 1 papers were well-researched. Students addressed a broad range of issues pertaining to the
subject matter, largely focusing on online dispute resolution and the Singapore Convention in a
commercial context, but cross-border family disputes could also have been explored. Some students
misinterpreted the question and instead of exploring the challenges to conventional mediation, they
erroneously focused on the challenges to online dispute resolution.
Those who scored higher grades made the most of the 5,000-word limit and therefore presented
much more comprehensive analysis. Those who scored lower grades presented superficial or one-
sided arguments. For example, while all students discussed the perceived benefits of technological
advancements, those who performed better also discussed the limitations and presented alternative
arguments for well-rounded analysis.

To improve performance, students should:

• Read the research assignment topic carefully to identify:
o issues to address, i.e., (1) differences in practice, culture and communication, (2)
technological advancements and (3) developments in law and practice; and
o topics to analyse, i.e., (1) cross-border disputes and (2) conventional mediation.
• Take full advantage of the 5,000-word limit and explore all sides of each issue.
• Ensure their arguments are supported by critical analysis. High-performing students are
expected to evaluate their source material by offering their own observations, criticisms
and/or opinions.

Group 2

“Disputants can often be wary of offering an apology for fear that it might increase their liability
exposure. Compare the Apology Ordinance in Hong Kong with two other jurisdictions and examine the
impact such apology legislation may have on dispute resolution processes and the future of mediation
in Hong Kong.”

Group 2 papers were well-structured. Students demonstrated an understanding of apology legislation

in Hong Kong and their comparison with other jurisdictions was interesting and insightful. It should be
noted that the USA comprises multiple jurisdictions and students need to be specific as to which they
are referring to. Good observations were made regarding the impact on dispute resolution as a whole,
but discussions regarding the future of mediation in Hong Kong were not as robust.

Those who scored higher grades demonstrated an ability to conduct extensive research on the subject,
with reference to specific aspects of apology legislation. Comments regarding conflict of law were
particularly remarkable. Those who scored lower grades were narrative as opposed to analytical.
Some students were also insufficient in both their research and referencing, which was evident by
their lack of authoritative sources and/or minimal bibliography.

To improve performance, students should:

• Critically analyse the legislation rather than simply describing its content.
• Conduct rigorous research instead of relying on only a few sources of information.
• Refer to academic journals and articles as opposed to blogs or websites by law firms.
• Ensure the sources you cite support the argument you are making. For example, note that
New World Development v SHKS concerns a written acknowledgment of debt rather than a
verbal apology.