Browsing by Projects - Department "Department of Law and Business"

The landscape of the use and development of mediation in settlement of disputes in Hong Kong has been fast changing. As defined in the Mediation Ordinance (Cap. 620), mediation as a structured process where an impartial individual, without adjudicating a dispute, facilitated the parties to the settle their disputes. To achieve this, mediators in Hong Kong are trained to “facilitate” parties to negotiate instead of evaluating the merits of the disputes for them. While the facilitative model remains the mainstream practice in Hong Kong, there are different variations of practice. One major variant is “evaluative mediation” where the neutral adopts a more “active or interventionist role, making suggestions or putting forward views on the merits of the case …” (CEDR, 2018, Brooker 2007). The two practices, as western studies shown, are not mutually inclusive. Academic studies in mediation tend to confined to the significant impact of mediation in the legal process, for instance accreditation standards (Honeyman 1995), mediation principles, process and skills (Boulle and Nesic 2010), satisfaction or settlement rate (Quek, Chua, & Ngo 2018). Hong Kong is in the crossroad of considering including evaluative mediation as one of the practice modes, but the practice of evaluative mediation practices is under-researched. To provide sufficient research output in support of this policy decision is imperative for the development of mediation in a direction that aligns with its purported aims. This study is original in that it extends the scope of research beyond the legal realm, and adopted an interdisciplinary approach combining legal and psychological theory and methodologies. The aim of this study is to investigate the behavioural and physiological response on a participating party in mediation sessions when facilitative or evaluative narrative skills are used. The findings will provide evidence-based data on the differences in the use of evaluative and facilitative mediation narratives, which are factors to be considered in enhancing the use of evaluation in mediation in Hong Kong. Stage 1 of the study will involve the development of two standard sets of mediation narratives in its verbal form, one on facilitative model and the other on evaluative model. Stage 2 will be an experiment in investigating the behavioural and physiological responses of participants on both facilitative and evaluative mediation models. In addition, the attempt to link physiological and behavioural responses to mediation practice will support the efficacy of the effective strategies in mediation practice that is scientifically substantiated. The result of the study will be significant not only for training of mediators, but more importantly for the development in Hong Kong the choice of style of mediation on a sound theoretical ground. The study will also increase mediators’ awareness that adopting different mediation strategies may lead to different behavioural and physiological responses, that might have an impact on parties’ decision making on whether to settle a dispute.

Restorative Justice (RJ) has been used in many parts of the world as one of the ways to offer alternative form of justice to both the offender and the victim. RJ puts a focus on those who are affected by an unjust act, and how this harm could be repaired by the person who has committed the acts. This is proved to be an effective way to support the offending party, especially young persons, to reintegrate into the community. RJ has also been supported by research studies as one of the effective approaches to juvenile criminal behaviour. With the recent resurge on youth crime rate in Hong Kong, the notion of RJ should be re-visited since resorting to penal justice is not an option to restore the harm done to the community. The introduction of RJ through the public semester, best joined by those who are currently involved in resolving cases relevant to youngsters in Hong Kong, will effectively attract the public. The theory and practice of RJ involved dimensions of studies in a multi-disciplinary way, including law, psychology and neuroscience. One major RJ theory is on “Reintegrative Shaming”, which encompasses aspects on emotional changes and cognition that are studied in psychology and neuroscience. It is the aim of this project to arouse social awareness of the use of RJ as a powerful tool in the criminal justice process, embedded with multi-disciplinary knowledge transfer in law, psychology and neuroscience.

In Hong Kong, an international financial centre, there are challenges in regulating the problem of illegal hawking by foreign domestic helpers (FDHs) in public areas such as footbridges, parks, gardens, and streets every Sunday. Both citizens and lawmakers are calling on the government to address the issue of unauthorised selling of cooked food and other goods and services in the locations where FDHs frequently gather. FDHs’ hawking activities are illegal because they have violated hawking regulations and breached a condition of stay. To control hawking activities, the Food and Environmental Hygiene Department and other legal authorities have regularly inspected hawker stalls and regulated the operation of itinerant hawkers when they were found hawking in the streets. Whenever necessary, they took enforcement action to address any irregularities. Hawker control and law enforcement measures, however, have not deterred FDHs. Illegal hawking activities remain common at the places where the FDHs often gather. An understanding of why people comply or do not comply with the law is thus of interest to legal authorities to evaluate the effectiveness of law enforcement and social control approaches. Drawing on a theoretical framework of legal compliance (e.g., Tyler 1990; Tankebe 2009; Wenzel 2004; Kagan & Scholz 1980; Kagan et al 2011; Gunningham et al 2003; Thornton et al 2005, 2009; Nielsen & Parker 2012) and mixed research methods (including surveys, in-depth interviews, and comparative law analysis), the project aims to understand why FDHs choose to comply or disobey these laws. It will answer four research questions: (1) Do FDHs comply with the law and the enforcement in Hong Kong? In other words, what are FDHs’ coping and evading strategies in tackling legal enforcement and what are the variations of the legal compliance decisions? (2) How do various factors (i.e., perceived deterrence, legal knowledge, cost-benefit calculations, perceived legitimacy, social norms, and social identity) shape FDHs’ various decision-making on legal compliance? (3) How do institutional contexts, such as immigration policies, employment rights protection status and other supportive mechanisms (Non-Governmental Organizations, Consulates and activists), contribute to the FDHs’ legal compliance decision-making in Hong Kong? And (4) What are the implications for improving legal compliance and law enforcement in the field of hawking control in Hong Kong? This project will generate rich empirical findings to provide a comprehensive and deep understanding of the effectiveness and limitations of hawking enforcement by the legal authorities of Hong Kong. This study on understanding legal evasions by migrant workers will provide benefits to various legal authorities in Hong Kong. It will also bring a unique insight of migrant workers into the theory of legal compliance.