Consent Is Not a Signature: Why Mediation Matters in Hong Kong
And, following on from my post about non-compliance and informed refusal, I find myself circling back to "consent", a word that sounds simple and is anything but.
Consent is a far cry from the bit at the end where everyone signs, sighs and celebrates. In a legal dispute, consent begins with the freedom to choose how a dispute will be dealt with, to understand the options available, and to say no to a process or an outcome that does not work for the individual(s).
In Court, the parties tell their stories, but it is the Judge who decides. In arbitration, the decision is handed to an arbitrator. Neither leaves the final word with the people actually in dispute. And this is where mediation comes into play.
Mediation is a structured, confidential space in which the parties can test options, understand each other's positions and, if they choose, write their own agreement. No outcome can be imposed on anyone in mediation. Its whole legitimacy rests on consent that is informed and continuing: consent to take part, consent to explore, and consent to settle … or not.
Nobody should mistake mediation for the easier form of dispute resolution. It takes real courage to sit across a table from the person you are in conflict with, look squarely at what has gone wrong, and try to gather a tangle of frayed ends and reframe them into something workable. It demands agency, preparation and a willingness to listen, all while keeping the right to stand up and walk away sans agreement.
Today, Hong Kong's growing mediation infrastructure gives mediation a far wider stage. On 30 May 2025, thirty three countries signed the Convention on the Establishment of the International Organisation for Mediation here in Hong Kong. The new body, IOMed, is the first intergovernmental organisation devoted exclusively to resolving disputes between states, foreign investors and cross-border businesses through mediation. It is spoken of in the same breath as the International Court of Justice and the Permanent Court of Arbitration, yet its philosophy is fundamentally different. It does not hand down a judgment. It keeps the parties' consent and their power to decide firmly in their own hands, and helps them reach an outcome of their own making. The IOMed headquarters opened here in October 2025.
Why Hong Kong? Few places hold so many legal worlds together at once. It is a common law jurisdiction operating under the "one country, two systems" framework, and it has long made room for military law too. I was reminded of this recently when RTHK interviewed me about a high profile court martial at HMS Tamar in the 1990s, in which I was one of two lawyers representing a Gurkha defendant. Distinct traditions, expectations and worldviews met in a single courtroom that day. https://www.rthk.hk/radio/radio3/programme/brunch/episode/1114983
That capacity to accommodate more than one legal tradition makes Hong Kong a fitting home for IOMed and eBRAM International Online Dispute Resolution Centre ("eBRAM"), Hong Kong's online dispute resolution platform, which makes mediation and arbitration available across borders without requiring parties to be in the same room, or even the same jurisdiction. At a more everyday level, eBRAM brings these processes within reach of small traders as well as multinationals, as Hong Kong's sole provider recognised under the APEC cross-border dispute resolution framework.
Consent is the foundation of mediation. It is not simply a signature at the end, but the continuing freedom to participate, negotiate, refuse and, where appropriate, agree.
This article first appeared on LinkedIn.