CPD Course:
Nuts and Bolts
in Aspirational
Family Mediation

Ms Chih has been practicing law since 1986, with a Master degree in International Law, a Diploma in International Arbitration and a Master Degree in Counselling.

Ms Chih is qualified as a HKMAAL general and family mediator in Hong Kong and is a very seasoned mediator having participated in over 500 mediation cases, covering area of personal injury, insurance, commercial, family, land, probate employment and contractual matters, etc.

Ms Chih has received extensive training experience in mediation locally and overseas, including the training by the Australian Accord Group as early as 2004, the HKIAC 2011, the Master of Negotiation programme by CEDR London 2013, the Negotiation training at the University of Oxford 2014, and the Master Negotiation training at the Harvard Law School 2014 and 2015.

Financial provision

• Principle for division of assets
1. What kind of assets are capable for division upon dissolution of marriage?
   - Matrimonial home/assets? - pre-marital assets?
   - External assets - e.g. gifts, inheritance?
   - Unilateral assets - e.g. sole investment/business?
   - Property held on constructive trust?
2. When can the equal sharing principle be departed?
   - by: Pre-nuptial agreement? Conduct of parties? Short marriages? Need of parties?
3. Can there be compensation for relationship - generated disadvantage or compensation for extra duty such as caring for children or elderly?
• Principle for provision of Ancillary Relief
1. Should there be life long provision for spouse in short marriages?
2. When can there be variation in financial provision?
3. Should psychological effect upon children caused by welfare of spouse be considered?
• Principle for maintenance for children
1. Should there be maintenance for children born by unmarried couples?
2. Should maintenance for children be for their life long interest?
3. Can lump sum be settled for purchase of house for children?
4. Should wish of paying party and need of children be considered?

• Meaning of custody, access, care and control
1. Is there any practical significance between custodial rights and non-custodial rights? (right to final decision vs right to be consulted only)?
2. What kind of combination of custody, access, care and control are permissible by orders of Court? - Joint custody? Shared care and control? Parallel-parenting? Liberal/reasonable access or defined access?
3. When is sole custody preferable by Court?
• Principles of guardianship under Guardianship of Minors Ordinance (Cap.13)
1. Significance of social welfare report and wishes of children (child objection defence) in matters of custody, access, care and control
• Jurisdiction of Hong Kong court in custody matters
1. Can parents of children born in Hong Kong (permanent residents) but raised in foreign country (e.g. China) apply for custody, care and control in Hong Kong court?
2. Forum non conveniens - Should only Court of the habitual residence of child have right to intervene in custodial, care and control matters?
3. A Lisalibi pendens - significance of ‘dispute elsewhere pending’
• Safeguard against child abduction under Child Abduction and Custody Ordinance (Cap.512) implementing the Hague Convention on the Civil Aspects of International Child Abduction
1. Who has the right to decide the child’s place of residence?
2. Is there a breach of custodial right of another spouse by removing the child to another place?
3. Right of Hong Kong Court to intervene depends on
   (i) Breach of custodial right of a spouse, unless there was:
   (a) acquiescence (i.e. strong subjective intention or misleading conduct by the other spouse), or
   (b) grave risk of the children in intolerable situation (e.g. suffering from physical or psychological abuse or neglect)

• Control, respect and deployment of ‘Emotion’
1. Management of negative emotion - e.g. hatred, revenge, bitterness, distrust, disrespect, withdrawn, avoidance...
2. Management of tension/conflict in relationship
3. Management of emotional outburst or breakdown in negotiation
4. Nourishment of positive emotion, by
   - Unconditional regard, empathy, affirmation, appreciation, encouragement, positive optimistic interpretation...
• Discerning the actual underlying core concern
1. Active listening, observing body language, heeding signs of distress and pressure, discerning feeling and psychological condition...
• Skill in guiding party to realize the best interest and solution for all especially for children
1. Employing open, thought -provoking questions, education, personal sharing, analogy... etc. to arrive at:
   (i) empathetic understanding of the relationship and conduct of parties,
   (ii) fair, objective and realistic view of the interest of all parties in the long run
• Generation of creative and practical options for parties
1. Skill in improving communication and opening up deadlock
2. Skill in encouraging hope, faith, trust and confidence in negotiation and future communication
3. Skill in reducing conflict in access and ensuring punctuality in periodical payment...
4. Skill in bringing realistic, practical and feasible co-parenting plan (covering custody, access, care and control)