Norris Yang founded ADR International Limited in 2002 and is a partner of ZhongLun Law Firm (HK). Norris was chairman of the Hong Kong Mediation Council (2003–2006) and has been instrumental in many mediation initiatives since. He mediates complex international commercial disputes in English and Chinese (Mandarin/Putonghua, Shanghainese, Cantonese). He has trained hundreds of accredited mediators in Hong Kong, Macau and China since 2003. is adjunct assistant-professor of the Chinese University of Hong Kong.
Describe your career to date.
While I maintain my practice as a commercial lawyer, the main focus of my career since 2008 has been mediation-related; I act as mediator, mediator-advocate, negotiator and trainer.
This change was in line with my personality and character: helping clients to resolve their problems with the most cost-efficient and effective method. I welcome the challenge of mediating complex cases.
What do clients look for in an effective mediator?
The mediator should have a clear understanding of how the clients hope the mediation will be conducted. The mediator should have some basic knowledge of the subject matter; and should be conversant in the languages used by the parties and sensitive to their cultural differences if any. Last but not least, the mediator must have the perseverance to continue to work effectively towards settlement in a cost-efficient manner.
What are the positive elements required to successfully resolve a dispute through mediation?
The parties themselves must also work hard towards the potential settlement. They need to temporarily put aside their positions and focus on satisfying their mutual interests, needs and concerns. They need to initiate better mutual communication and trust each other by words and actions. They need to be open to new ideas, and to collaborate with each other to change a complex situation to a workable and simple solution.
What further steps can the government take in order to promote mediation more effectively?
The government should, through legislation, formally recognise mediation as a dispute resolution process before and during the litigation process. This would also include recognising mediation as a profession and regulating the accreditation of mediators and their professional association. The government should also recognise the parts of the UNCITRAL mediation laws and regulations relevant to their own jurisdiction and the proposed UNCITRAL Convention on enforcement of international mediation settlement agreements.
What are your views on the use of facilitative and evaluative mediation when resolving disputes?
There are many different views on the definition of “evaluative mediation”, while there is general consensus on what is “facilitative mediation”. The facilitative mediator tries to understand the interests, needs and concerns of each of the parties and then assists them to understand the realities of their position. The mediator then assists the parties to formulate their negotiation strategies for settlement. If “mediation” is a process where the parties have their say in how they wish to or not wish to settle their disputes, then any sort of “evaluative” element would be counter-intuitive. Since there isn’t a universally accepted definition of what “evaluative mediation” is, it would be difficult to use such a process unless it is clearly defined and made clear to the parties. It is also important that its definition does not resemble other “evaluative processes” such as early neutral evaluation, adjudication, mini-trial, expert evaluation etc.
I would suggest that whenever parties require an evaluation of an issue during the mediation process, the mediator can facilitate the parties to agree on objective criteria for the evaluation or to choosing a subject expert to give an opinion. This is already part of the facilitative mediation process well recognised, accepted and practised effectively for decades. Why create new and complex challenges when the old model works so well?
What effect do you think technology will have on the future of mediation?
AI, automation and blockchain technology will help reduce administrative and clerical errors resulting in fewer disputes related to such errors. The same technology will also reduce disagreements with facts, evidence and paper-trails. Research on case law will also be much more automated. Reduction of human error will result in reduced litigation costs. Video conferencing for multiple parties is already readily available and, coupled with e-discovery, parties can choose online mediation if face-to-face meetings are not necessary. This shift will occur firstly with more simple cases, and eventually more complex cases. Online mediation is cost-effective and will likely become mainstream for more simple cases.
Do you think there will be a shift towards collaborative rather than adversarial dispute resolution processes?
Litigation has already become so adversarial, complex and technical that the pendulum will swing in the opposite direction towards more collaboration in the future. There is already a move towards using “simple language” in legal documents. There will be new automated systems designed to deal with disputes as they arise during the business process rather than after the fact. Corporate profitability will be challenged if disputes linger and are not resolved quickly. These factors will shift the dispute resolution processes to being less adversarial and more collaborative in the future.
What advice would you give to younger mediators hoping to one day be in your position?
It is clear that mediation will become more popular as a dispute resolution process in the future. Studies have already recognised that millennials are more collaborative than Generation X or baby boomers. They are more willing to share information and responsibility to complete a project. Their education, ease with handling technology and culture have trained them to work in groups and on projects. As millennials take on more senior managerial roles in business or in governments, their leadership will embrace collaborative approaches much more readily than their predecessors. Younger mediators will see more work available for them, and millennials will be readier to accept the concepts of mediation and practise those techniques at work and at home. That will be the beginning of “preventative management of conflicts” when disagreements and complaints are settled before they escalate to become a conflict, dispute, arbitration or litigation.
Advice for the younger mediators: be patient and be ready to become an expert on prevention of conflicts.
Norris Yang is highly regarded in the field, having successfully mediated cases across various jurisdictions. He has particularly strong expertise in commercial and scientific matters.
Mr Yang has been practising international commercial law in Hong Kong and Canada since 1980. He is a founding partner of Yang Chan Jamison LLP, Hong Kong (part of the Deloitte Legal Network) and founder of ADR International Limited (a provider of ADR services). He received mediation training from Canada, the United States (Notre Dame Law School, Pepperdine University (Straus Institute for Dispute Resolution)), Australia and Hong Kong.
His diverse background in science, computing, business and law, coupled with his fluency in English and three Chinese dialects (Cantonese, Mandarin and Shanghainese), together enable him to flow between different cultures, languages and subject matters.
Mr Yang has significant experience dealing with international commercial disputes in a variety of disciplines as a facilitative, evaluative or transformative mediator.
He was the first Asian accredited by the International Mediation Institute (The Hague, www.imimediation.org) and the first Hong Kong lawyer to be honoured as a distinguished international neutral of the CPR Institute (New York, www.cpradr.org). He is an accredited mediator of the Hong Kong Mediation Accreditation Association Limited (HKMAAL), the Hong Kong International Arbitration Centre (HKIAC) and the Law Society of Hong Kong (General and Family). He is also an assessor for HKMAAL.
He is presently the chairman of the HKMAAL communications and publicity committee and was a past chairman of the Hong Kong Mediation Council (2003–2006).
Mr Yang teaches mediation for the Chinese University of Hong Kong and independently conducts accredited mediation courses in China, Hong Kong and Macao (training senior government officials, lawyers, accountants and business executives). He is a frequent speaker at universities, conferences and professional associations.