Out of court mediation is becoming more common in Thailand as it offers a less adversarial and cost effective approach to dispute resolution. A wide range of disputes are referred to the Thai Mediation Center.
The practice is jointly helmed by Steven Burkill and Kay Kian Tan with specialisation in the transport, power and energy and international trade sectors. Other key members are Ratthakarn Boonnua and Tossaporn Sumpiputtanadacha.
Court-Annexed Mediation
In the context of Thailand’s rapid economic development, the number of litigations has increased significantly leading to a massive backlog of cases. This has created challenges for the judiciary to resolve controversies within reasonable timeframes. The presiding judges in courts of justice are empowered under the Civil Procedure Code to order mediation of a dispute where they consider it appropriate or with the disputing parties’ consent.
The mediation process is non-binding and confidential. The arbitrator and disputing parties determine the timeframe for settling the dispute. It generally takes about one year on average before conflict resolution is achieved. The advantage of court-annexed mediation is that the award can be enforceable abroad under the New York Convention. However, it is not as effective as an independent arbitration and it is less flexible. The cost of an annexed mediation is also relatively high. The disputing parties may choose to have a single or a three-arbitrator tribunal. Usually, a list of potential arbitrators will be provided to the disputing parties where the disputing parties are required to remove the names of those whom they do not prefer and add their own choice of arbitrator.
Court-Annexed Conciliation
In Thailand, most cases that are pending in court will be required to participate in a court-annexed conciliation before the case can proceed to trial. During the conciliation process, disputes are mediated by a neutral third person (known as the Mediator) who assists the disputing parties in finding mutually satisfactory solutions to the issues they are facing. A successful mediation may lead to a compromise agreement that is binding and enforceable in court.
The court-annexed conciliation system in Thailand is managed by the Thai Mediation Center, a division of the Alternative Dispute Resolution Office under the Office of the Judiciary. This office is responsible for coordinating and conducting both out-of-court and court-annexed mediation, as well as offering legal advice to the public on conciliation.
In addition, many private companies have specialized in providing mediation services. They are often staffed with experienced lawyers, former judges and entrepreneurs. There is also growing interest in hybrid dispute resolution mechanisms like Arb-Med-Arb, which combine arbitration with mediation.
Out-of-Court Mediation
Courts have been empowered by the law to order court-annexed mediation in civil cases at their discretion or with the parties’ consent. This practice is becoming more widely accepted in Thailand and it will likely continue to grow in popularity as the benefits of the process become more apparent.
Mediation also has the advantage of reducing the workload of courts, which will benefit businesses and citizens alike. It is a faster process than litigation, as hearings can be scheduled according to the availability of the parties and arbitrators.
Mediation proceedings are usually conducted in a private setting. This provides the disputing parties with confidentiality, which is a great benefit for renowned individuals and companies that need to preserve their image and reputation. The settlement reached through the process is also binding on the disputing parties, which will be enforceable by the courts.
Arbitration
In Thailand, arbitration is primarily conducted through the courts or through two Thai institutes that have been authorised and established to support this process. Courts generally respect the choice made by the parties regarding governing law in an arbitration agreement, but if the parties have not specified this, they will apply Thai law.
Arbitration proceedings are confidential, and an arbitral award is private and cannot be publicly disseminated. However, there are exceptions to this rule in the case of enforcing or setting aside an award or complying with legal provisions or requests by government authorities.
The 2002 Arbitration Act provides for the autonomy of the parties to select their arbitrators and prohibits any discrimination between domestic and international arbitration. Arbitrators are also required to disclose any circumstances that might give rise to justifiable doubts about their impartiality and independence. Nevertheless, guerilla tactics such as challenging the appointment of arbitrators and opening parallel proceedings are still regularly deployed by some parties.
