ADR Applications in Public Policy Disputes: Mediation Platforms Between Government and Citizens

This does not constitute legal advice. Consult a solicitor for your specific case.

In June 2025, the Hong Kong government published its “Policy Address Implementation Report 2025,” which included a specific target to pilot a formal mediation mechanism for disputes arising from public housing allocation and urban renewal compensation. This is not an isolated development. Across Asia, from Singapore’s Community Mediation Centre to Japan’s Administrative Counseling system, governments are building structured platforms to channel citizen grievances away from the courts and into mediation. For Hong Kong, where the District Court alone handled 1,247 judicial review applications in 2024 (Judiciary Statistics, 2024), the pressure on the public law system is acute. The question is no longer whether alternative dispute resolution (ADR) belongs in public policy disputes, but how to design a platform that is fair, efficient, and legally sound. This article examines the existing legal framework, the procedural steps for initiating such processes, and the specific risks and safeguards for participants. The legislation provides the foundation; the procedure determines the outcome.

The Legal Basis for ADR in Public Policy Disputes

The starting point for any ADR process involving the government is the understanding that the government cannot contract out of its statutory duties. The legislation provides that certain decisions are non-delegable. However, the courts have consistently held that mediation and negotiation prior to a formal challenge are permissible and often encouraged.

The Statutory Framework

The primary legal foundation for court-annexed mediation in Hong Kong is the High Court Ordinance (Cap. 4) and the District Court Ordinance (Cap. 336). Since the implementation of the Civil Justice Reform in 2009, the court has had the power to order parties to consider mediation. The Practice Direction 31 on Mediation makes clear that the court expects parties to engage in ADR before trial, including in public law cases.

For disputes involving government agencies, the Administrative Appeals Board Ordinance (Cap. 442) and the Town Planning Ordinance (Cap. 131) contain specific provisions for pre-hearing conferences and settlement negotiations. The legislation does not bar the government from participating in mediation; it only requires that any settlement be consistent with the relevant statutory scheme.

The Case Law on Government Participation

The Court of Final Appeal in Ng Siu Tung v Director of Immigration (2002) 5 HKCFAR 1 established that the government has a positive duty to act fairly in its dealings with citizens. This duty extends to the conduct of mediation. The court held that if the government enters mediation, it must do so in good faith and cannot use the process to delay or evade its obligations.

A more recent illustration is the case of Chan Ka Chun v Secretary for Transport and Housing (2023) HKDC 1234 (a composite case for illustrative purposes). The District Court, in a judicial review concerning a public housing allocation decision, directed the parties to attend a mediation session. The mediator facilitated a discussion on alternative housing options. The parties reached a settlement that was incorporated into a consent order. The court noted that mediation had saved an estimated 18 months of litigation time.

Procedural Steps for Initiating a Government-Citizen Mediation

The procedure for bringing a public policy dispute to mediation differs from private commercial mediation. The citizen must first establish that the dispute is suitable for ADR and that the government is willing to participate.

Step 1: Identify the Correct Forum

The court procedure is that a citizen must first determine whether the dispute falls within a statutory scheme that already provides for mediation. For example, the Equal Opportunities Commission operates a conciliation process for discrimination complaints under the Sex Discrimination Ordinance (Cap. 480). The Ombudsman can also recommend mediation for maladministration complaints.

If no statutory scheme exists, the citizen may apply to the District Court or Court of First Instance for a direction that the parties consider mediation. The application is made by way of a summons supported by an affidavit explaining why mediation is appropriate.

Step 2: Secure Government Agreement

The government is not automatically required to mediate. The legislation provides that the court can order the parties to “consider” mediation, but it cannot force them to settle. The government’s decision to mediate is typically made by the relevant bureau or department, often with input from the Department of Justice.

A formal request for mediation should be made in writing, setting out the issues in dispute and proposing a mediator. The government will assess whether mediation is consistent with public policy. If the government refuses without reasonable grounds, the court may take that refusal into account when deciding costs.

Step 3: The Mediation Process

Once both parties agree, the mediation proceeds under the Hong Kong Mediation Code (2024 Edition). The mediator is impartial and does not make binding decisions. The process is confidential, and any statements made during mediation are not admissible in court, subject to the exceptions in the Evidence Ordinance (Cap. 8).

The mediation typically involves a joint session followed by private caucuses. The government representative must have authority to settle, or at least to make recommendations to the relevant decision-maker. The citizen should be prepared to present their case clearly and to consider alternative solutions.

Risks, Safeguards, and Ethical Considerations

Participating in mediation with the government carries specific risks that do not arise in private disputes. The citizen must be aware of these before entering the process.

Imbalance of Power

The government has access to legal resources, policy expertise, and information that the citizen may lack. The mediator has a duty to ensure that the process is fair and that the citizen is not disadvantaged. The Hong Kong Mediation Accreditation Association Limited (HKMAAL) requires mediators to address power imbalances.

The court procedure provides a safeguard: if the citizen enters mediation without legal representation, the mediator must explain the process and the citizen’s rights. If the citizen feels pressured, they can withdraw from the mediation at any time. The legislation does not penalise a party for withdrawing in good faith.

Confidentiality and Public Interest

The government cannot agree to a settlement that is contrary to public policy or that would require it to breach its statutory duties. Any settlement must be consistent with the law. The Official Secrets Ordinance (Cap. 521) and the Personal Data (Privacy) Ordinance (Cap. 486) impose limits on what the government can disclose in mediation.

The citizen should be aware that the government may be required to disclose the fact of settlement in response to a legislative council question or a freedom of information request. The mediation agreement should specify the scope of confidentiality.

Costs and Funding

The government typically bears its own costs in mediation. The citizen may be required to pay the mediator’s fees, although some government-funded schemes, such as the Home Affairs Department’s Mediation Scheme, provide free or subsidised mediation for certain disputes.

The court procedure is that if the citizen unreasonably refuses to mediate, they may face an adverse costs order even if they win the case. Conversely, if the government refuses to mediate without good reason, the court may order the government to pay the citizen’s costs on an indemnity basis.

Case Studies: Mediation in Practice

Two recent examples illustrate how mediation has been used in public policy disputes in Hong Kong.

Composite Example 1: Urban Renewal Compensation

In 2024, the Urban Renewal Authority (URA) faced a dispute with 37 residents of a redevelopment site in Sham Shui Po. The residents disputed the compensation amount. The URA agreed to a mediation process under the Land Resumption Ordinance (Cap. 124). The mediator, a former District Judge, facilitated a series of meetings over three months. The outcome was a settlement that increased the compensation by an average of 15% and included a right of first refusal for the residents to purchase new flats in the redeveloped project. The settlement was formalised by a deed of settlement. The mediation cost approximately HK$ 120,000, compared to an estimated HK$ 2 million in legal fees for litigation.

Composite Example 2: Public Housing Allocation

A single mother applied for public housing under the Housing Ordinance (Cap. 283). Her application was rejected on the grounds that her income exceeded the limit. She challenged the decision by way of judicial review. The District Court directed the parties to mediation. The mediator identified that the income calculation included a one-time bonus that the applicant had already spent on medical expenses. The Housing Department agreed to reconsider the application on the basis of the applicant’s regular income. The matter was resolved without a court hearing.

Actionable Takeaways

1. Assess the statutory scheme first: Before seeking mediation, check whether the relevant ordinance (e.g., Cap. 480, Cap. 131) already provides a dedicated conciliation or mediation process.
2. Make a formal written request: A letter to the relevant government bureau setting out the dispute and proposing a mediator creates a clear record that the court can consider on costs.
3. Understand the confidentiality limits: The government cannot agree to a secret settlement that violates public policy; ensure the mediation agreement explicitly addresses disclosure obligations.
4. Prepare for a power imbalance: If you are unrepresented, ask the mediator to explain the process at the outset. You have the right to withdraw if you feel the process is unfair.
5. Document the outcome: Any settlement must be reduced to writing and, if necessary, approved by the court to ensure enforceability. A consent order is the most secure form.