The Case

The dock-workers’ walk-out finally ended on its 40th day when the striking dockers suddenly accepted the 9.8 per cent pay rise offered by their employers. During this period of conflict, power plays by different parties involved had been escalating. The dock workers first moved from the Kwai Chung Container Terminal to camp outside the Cheung Kong Centre. Then they protested outside the home of Cheung Kong head honcho Li Ka-shing, before staging a blockade on a road outside the Kwai Chung Container Terminal.

As for Cheung Kong, it had, through its subsidiary Turbo Top, started a legal battle in court seeking injunction to restrain the unionists from entering into, or trespassing onto areas surrounding the Cheung Kong Centre. Full-page statements were published in the newspapers by Hutchison Whampoa in which the unionist, Lee Cheuk-yan, was described as using tactics similar to those employed during the Cultural Revolution to launch personal attacks on Li and his lieutenant Canning Fok.

Were there actually any winners? Global Stevedoring, which employed around 170 dock workers, was forced to decide to close down business in June this year, thus becoming the first big loser. With the dock workers only achieving a 9.8 per cent pay rise – less than the “double digit” increase they had been fighting for – they could also be considered losers. The court also held that the strikers and unionists could continue to camp outside the Cheung Kong Centre until the formal hearing of injunction in July this year, no doubt to the displeasure of Li Ka-shing and company.

The Labour Department had asserted that it was conducting a medication process, but was it? Looking back at the numerous rounds of meetings held between the contractors and the workers with the assistance of the Labour Department, it seems that it wasn’t. Would the strike have ended earlier, or differently, if they had had the assistance of a real mediator?

The Examination

Since the strike began, the Labour Department purported to assume the role of a “mediator”. A mediator is an independent, neutral third party who does not have any actual or perceived interest in the subject matter of the dispute. They have to be an impartial figure, who cannot be biased in any fashion, or even advise or propose a solution. It is a fundamental principle in mediation that parties take ownership of the mediation process and the solution to the problem.

Given such circumstances, how could the Labour Department say that it did not have an interest in the outcome? It was in the government’s best interests to resolve the dispute as soon as possible. The department’s efforts went under public scrutiny, and when no settlement was reached in the first two weeks or so, its competence was heavily criticised. 

In the first few rounds of meetings, media gave blow-by-blow reports of the contents of the discussions among the parties involved. One day, it was reported that the contractors were willing to make a pay rise of 5 per cent. The next day, it was said that the contractors proposed increasing fringe benefits by 2 per cent.

How could the participants feel safe to discuss and make proposals in the meeting when there was, possibly, a blanket disclosure of all the details? Yet confidentiality is an essential component in the mediation process. Parties have to sign an Agreement to Mediate, where the confidential obligations of the parties and attendees are set out.

It is provided under Section 8 of The Mediation Ordinance, Cap 620 of the Laws of Hong Kong that, save for the exceptions in subsection 2, all mediation communications are confidential and no one should disclose contents of discussion to people outside the meeting. What actually happened after the meetings of the workers and the contractors completely defied this concept.

Hence, it is understandable that the representative from Hongkong International Terminals was only present at the meeting without taking part in the discussion. Without confidentiality, a full and frank discussion of the issues was simply impossible.

It is also interesting to note that the first meeting between the workers and the contractor ended abruptly because the contractors were hungry and went for lunch. At the second meeting, the workers’ representative asked for a short break but the contractors left the meeting before they returned. Both of these incidents show a lack of commitment towards the process by the contractors.

Commitment is another pillar to the mediation process which is also evidenced by the Agreement to Mediate. It sets out the period of time which the parties commit to stay in the process, while the parties also pledge to participate in good faith and co-operate with the mediator and each other with a genuine intent to solve the problem.

Furthermore, before the mediation begins, the mediator and the parties will agree and jointly adopt some ground rules regarding behaviour during the process. These elements are instrumental in ensuring the parties remain in the process, focusing their time and efforts to deal with the problem. It is not surprising that the meetings between the workers and contractors ended in disaster when the Labour Officer did not have the benefit of these tools to manage the process.

The contractors’ representatives mentioned that they needed to go back and relay the workers’ demands to their boss after the meeting. It is not understandable why this happened. Was this a negotiation tactic or were the representatives not aware of the importance of ensuring sufficient authority to make decisions at the bargaining table?

Mediation is a conversation about making decisions while the mediator is obliged to ensure that the designated representatives of each party will have the necessary authority to enter into any settlement when they reach consensus. Any party’s representative at the meeting has to listen and understand the other side’s perspectives, needs and interests, and has to make decisions when a solution can be reached. The representative has an important role to play in decision-making and is not a mere messenger.

While the workers and unionists had been insisting on a “double digit” increase, the four contractors made their final offer of 9.8 per cent unilaterally, on the 38th day of the strike. At the same time, they also announced their refusal to negotiate further – the “take it or leave it” message was loud and clear.

By then, both parties were refusing to back down. One can easily see that when offers and counter-offers were made back and forth publicly, it left the negotiation in a deadlock as no one wanted to be perceived as the losers.

During a mediation process, a mediator has to assist the parties to negotiate by helping them uncover the interests, needs and concerns behind their own positions and see the needs of their counterpart. They will – usually in separate confidential sessions with each party – reality-test such options with the party and help them to think ahead about the negotiation.

The flexibility in a mediation process also offers choice to the parties to either make proposals directly to each other or through the mediator. When the whole process is conducted on a confidential basis, the embarrassment of losing face and the risks of breaking down the negotiation can be avoided.

The Conclusion

While the Labour Department claimed that they were mediating the dispute, the meeting was, in fact, a conciliation. The department’s officers were conciliators who executed their duties under the legislation. They actively gave advice and proposed solutions, and were not completely independent and neutral.

Given what we have learned so far, when similar incidents happen in the future, it is vital to carefully diagnose the problem, seriously consider what dispute resolution process is appropriate and decide on the necessary safeguards that are required to ensure its success. Apart from engaging the parties in a conciliation meeting, the option to engage the assistance of an independent, neutral mediator must be seriously considered.

Before any discussion begins, the parties should be requested to sign an Agreement to Mediate which prescribes the confidential obligations of the parties and nails them to a commitment to remain in the process – no matter how hard the problem is to resolve.

While mediation has been widely used as an alternative dispute resolution process since the Civil Justice Reforms were implemented in April 2009, it is time to consider extending the scope of its application to public disputes.

Jody Sin is a solicitor, vice-chairperson of the Hong Kong Mediation Council and an accredited mediator with the HK International Arbitration Centre (HKIAC).

Roy Cheng is an HKIAC-accredited mediator and adjunct lecturer at the University of Hong Kong’s School of Professional and Continuing Education.

The information contained in this article should not be relied on as legal advice and should not be regarded as a substitute for detailed advice in individual cases. If advice concerning individual problems or other expert assistance is required, the service of a competent professional adviser should be sought.