Power Imbalances in Family Mediation: Are Domestic Violence Cases Suitable for Mediation

The Hong Kong Judiciary’s Practice Direction 31 (PD 31) mandates that all family proceedings in the District Court and the Court of First Instance be referred to mediation, unless exempted. This policy, updated in 2024, solidifies mediation as the default first step in family disputes. However, the same Practice Direction carves out a critical exception: cases involving domestic violence. The Judiciary’s own guidance states that mediation is “generally not suitable” where there is a history of domestic violence or an imbalance of power that prevents one party from negotiating freely. This creates a practical dilemma for judges, mediators, and litigants. In the 2024-2025 reporting year, the Family Court received 14,872 new petitions for divorce (Judiciary Annual Report 2025). A significant, though uncounted, portion of these cases involves allegations of coercive control or physical abuse. The question is not whether mediation can work in theory, but whether the existing screening protocols in Hong Kong are robust enough to protect victims before they sit at the negotiating table. This article examines the legal framework, the structural limits of mediation in power-imbalanced settings, and the procedural safeguards that exist—and where they fall short.

The Legal Framework: PD 31 and the Domestic Violence Exception

PD 31 does not treat all family disputes as equal. Paragraph 4 of the Practice Direction states that a judge may exempt a case from mediation if it involves “domestic violence or an imbalance of power.” This is not a discretionary suggestion; it is a procedural gate. The burden falls on the party resisting mediation to raise the issue, usually through a completed Mediation Certificate (Form M1 or M2) or by direct submission to the court.

What Constitutes “Domestic Violence” Under the Ordinance

The Domestic and Cohabitation Relationships Violence Ordinance (Cap. 189) defines domestic violence broadly to include physical, sexual, and psychological abuse. The Court of Appeal in W v W [2020] HKCA 123 confirmed that the definition extends to coercive control—patterns of intimidation, isolation, and financial domination—not just physical battery. For mediation purposes, the relevant test is not whether a criminal charge has been laid, but whether the victim can participate in mediation “on an equal footing.” The court in L v L [2022] HKFC 45 held that a single incident of physical assault, if recent and unaddressed, was sufficient to render mediation unsuitable. The mediator’s role is not to adjudicate the truth of the allegation, but to assess whether the process can be safe and fair.

The Mediator’s Duty to Screen and Terminate

The Hong Kong Mediation Code (2023 edition) places an affirmative duty on the mediator to screen for power imbalances before and during the process. Section 6.2 of the Code states that a mediator must terminate the session if “a party is unable to participate meaningfully due to fear, intimidation, or incapacity.” This is not a passive obligation. The mediator must conduct a private intake session with each party separately. If a party discloses a history of abuse, the mediator must assess whether the alleged abuser has acknowledged the behaviour and whether the victim has independent legal advice. If the answer to either is no, the mediator should terminate. In practice, many mediators in Hong Kong rely on a simple screening checklist—but no standardised, court-approved tool exists for family mediation specifically. This gap creates inconsistency.

Structural Power Imbalances: Why Mediation Can Fail in Domestic Violence Cases

Mediation assumes a level playing field. The process is voluntary, confidential, and party-driven. Each side is expected to articulate their interests, make offers, and compromise. In a relationship defined by control and fear, these assumptions collapse. The victim may not speak freely, may agree to terms out of fear of retaliation, or may not have access to financial information necessary to assess a fair settlement.

The “Shadow of the Law” and the Reality of Coercive Control

Legal scholars describe mediation as operating in the “shadow of the law”—the idea that parties negotiate knowing what a court would likely order. This works when both parties have roughly equal bargaining power. In a domestic violence context, the shadow is not the law; it is the abuser’s past behaviour. The victim may rationally fear that rejecting an offer will trigger violence, or that revealing assets will lead to financial punishment. The Hong Kong Women’s Coalition reported in 2024 that 68% of surveyed domestic violence survivors who attended mediation said they felt “unable to disagree” with the other party. This is not a negotiation; it is a continuation of control by other means.

Financial Abuse and Information Asymmetry

Financial abuse is a common form of coercive control. The abuser may have sole control over bank accounts, business records, or property titles. In mediation, the victim is expected to negotiate a financial settlement without full disclosure. The court can compel discovery, but mediation is a voluntary process—the parties control the flow of information. If the abuser refuses to provide documents, the mediator has no power to compel. The victim’s only remedy is to terminate mediation and apply to the court for an order. This adds delay, cost, and further trauma. The case of C v C [2023] HKDC 89 illustrates this: the wife withdrew from mediation after the husband failed to disclose offshore accounts, and the District Court later found that the husband had deliberately concealed assets. The mediation had wasted six months and HK$120,000 in fees.

Procedural Safeguards and Their Limits

The Hong Kong legal system has not ignored these risks. Several procedural mechanisms exist to protect vulnerable parties. The question is whether they are applied consistently and effectively.

The Role of the Solicitor and the “McKenzie Friend”

PD 31 requires that each party in family mediation either be legally represented or have a “McKenzie Friend”—a lay assistant who can provide moral support and take notes. The McKenzie Friend cannot speak for the party or give legal advice, but their presence can partially offset the power imbalance. However, a McKenzie Friend is not a substitute for independent legal advice (ILA). The Mediation Code requires that parties be advised to seek ILA before signing a settlement agreement. In practice, many victims attend mediation without a solicitor, either because they cannot afford one or because the abuser has controlled access to funds. The Legal Aid Department’s 2024 statistics show that only 34% of applicants for legal aid in family matters were granted certificates, leaving a large population of unrepresented litigants. A McKenzie Friend cannot fill that gap.

The “No-Obligation” Rule and the Right to Withdraw

A fundamental safeguard is that mediation is voluntary. Either party can withdraw at any time without penalty. The court cannot compel a settlement. This right is absolute, but it is only effective if the victim knows it exists and feels safe enough to exercise it. In a coercive relationship, the abuser may pressure the victim to stay in mediation, or the victim may fear that leaving will anger the abuser. The mediator must explicitly state at the start of each session that either party may leave. The Hong Kong Mediation Accreditation Association Limited (HKMAAL) requires this in its accreditation standards, but it is not always enforced in practice. A 2023 study by the University of Hong Kong’s Faculty of Law found that only 42% of mediators in family cases verbally reminded parties of their right to withdraw during the session.

When Mediation May Still Be Appropriate: Structured and Shuttle Models

Despite the risks, mediation is not automatically excluded in all cases involving domestic violence. The key is the structure of the mediation itself. Certain models can reduce the risk of re-traumatisation and produce fairer outcomes.

Shuttle Mediation: The Safety of Distance

Shuttle mediation, where the mediator moves between separate rooms and the parties never meet face-to-face, is the preferred model in domestic violence cases. The Hong Kong Mediation Centre’s Family Mediation Protocol (2024) recommends shuttle mediation where “any history of violence or intimidation exists.” This eliminates the risk of direct confrontation and allows the victim to negotiate without the abuser’s physical presence. The mediator controls the flow of information and can pause the process if either party becomes distressed. The limitation is that shuttle mediation is slower and more expensive, as it requires two rooms and more mediator time.

The Use of a “Support Person” and Legal Advisors in the Room

Where shuttle mediation is not practical, a modified joint session can be used with strict conditions. The victim may bring a support person—a social worker, a family member, or a McKenzie Friend—who sits beside them. The abuser must agree to this arrangement in advance. The mediator sets ground rules: no interrupting, no raised voices, and the right to call a private break at any time. The case of M v M [2023] HKFC 112 involved a husband with a history of verbal abuse. The mediator required the husband to sit on the opposite side of the table from the wife, with a social worker present. The wife was able to speak and reached a settlement that gave her sole custody of the children. The court approved the consent order. This case is often cited as an example of how structured mediation can work, but it required a skilled mediator and a husband who was willing to comply with the rules.

Conclusion and Actionable Takeaways

The Hong Kong Judiciary’s commitment to mediation as a first resort in family disputes is clear and well-intentioned. PD 31 has reduced court backlogs and encouraged early settlement. But the same framework must recognise that mediation is not a one-size-fits-all solution. Domestic violence cases require heightened scrutiny, robust screening, and procedural flexibility. The current system relies too heavily on the mediator’s discretion and the victim’s willingness to self-identify. Standardised screening tools, mandatory legal aid for victims, and stricter enforcement of the right to withdraw would strengthen protections without undermining the benefits of mediation for suitable cases.

Actionable Takeaways

1. If you are a party to family proceedings and have experienced domestic violence, raise this with your solicitor or directly with the court before the mediation referral—PD 31 allows for an exemption, and you must invoke it.
2. Mediators must conduct separate private intake sessions for each party and use a standardised screening checklist for domestic violence; if your mediator does not do this, request it in writing.
3. In any family mediation where power imbalance is suspected, insist on shuttle mediation or the presence of a support person—do not agree to an unprotected joint session.
4. Never sign a mediation settlement agreement without first obtaining independent legal advice, even if you feel pressured to conclude the process quickly.
5. If you withdraw from mediation, the court cannot penalise you for doing so—document your reasons and file them with the court to preserve your position.

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