Barriers to mediation: keeping secrets

image via wikipedia

At the start of a mediation the parties and mediator establish the “ground rules” for the mediation process. One of the most important rules is truthfulness – being truthful with each other and the mediator and disclosing all matters relevant to the dispute. Sometimes it can be hard to know what matters are or are not relevant to the dispute. During your private session your mediator can help you; if, after discussing the matters, you decide they are not relevant and do not need to be disclosed, your mediator is bound to keep those discussions private and confidential, so there is no risks associated with “over disclosure”.

If, on the other hand, you keep important information to yourself, the mediation process and any agreement reached may be compromised. This is exactly what happened to Hong Kong’s Fok family.

When he died in 2006, the family patriarch, Henry Fok, was ranked by Forbes magazine as the world’s 181st most wealthy person. The property tycoon was survived by 13 children, from 3 marriages, and left an estate valued at over HK$30 billion (US$3.87 billion).

The family reached a ‘confidential pact’ resolving the dispute over the tycoon’s will, written in 1978, in August last year, avoiding a public hearing that would have exposed the family’s affairs. Benjamin Fok Chun-yue, youngest son from Fok’s first marriage, has now applied to the Hong Kong court to revoke the pact and reopen the case. Benjamin claims that his elder brother, and executor of the estate, Ian Fok Chun-wan, withheld details of their father’s 25% share in an estate project in Guangzhou’s Nansha district in southern China’s Guangdong province.

Keeping this property interest a secret from the rest of the family, or failing to ensure it was “on the table”, may have caused the family pact to unravel, leading to further legal costs, inconvenience, not to mention heartache for the whole family, including the children of Fok’s second and third wives, who may be compelled to repay funds distributed to them from the estate. Read more about the Fok family story at Want China Times (http://www.wantchinatimes.com).

For mediation to succeed and negotiated agreements to be durable, all parties must be willing to disclose all information that will impact on the decisions to be made. Simply saying “they knew about it” is not enough, parties must actively ensure that all relevant facts are “on the table” for discussion.

File:Closer view of round conference table from above, taken at the Potsdam Conference during newly elected British Prime... - NARA - 198703.jpgimage via wikimedia commons 

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