Dispute Resolution is the way in which disputes are settled outside the classical judicial system. It includes both mediation and arbitration.
Generally speaking, prospective litigants in Thailand are not obligated to undertake any alternative dispute settlement procedures before commencing litigation. Courts, however, encourage out-of-court dispute resolution processes. They do this by introducing incentives such as exemption of court fees for mediation.
Alternative Dispute Resolution
Alternative Dispute Resolution (ADR) offers a new approach to dispute settlement. This approach provides a win-win solution for disputing parties and society at large. It also helps reduce court workloads and improves remediation outcomes for migrant workers in Thailand.
Conventional dispute resolution involves litigation in a hostile, antagonistic environment and requires a judge to make a decision on behalf of the participants. ADR aims to return control of the dispute to the participants and help them settle their disputes out-of-court.
Arbitration proceedings are conducted in a private setting and all information, evidences, statements, and arguments presented during the proceeding can be kept confidential. This is very beneficial for renowned public figures and businesses as it protects their reputation.
In addition to the services provided by the courts, a number of institutions and centers provide arbitration services in Thailand including the Thailand Arbitration Institute in the Office of the Judiciary, THAC Mediation Center, and the Ministry of Justice. Additionally, there are numerous private arbitration services available in the country.
Arbitration
Arbitration is a far more efficient dispute resolution method than litigating in Thailand’s state courts. It is also more cost effective.
The legal basis for out of court arbitration is the Arbitration Act of 2002, based on the UNCITRAL Model Law with some Thai-specific additions. The Act governs both domestic and international arbitration and provides for the recognition and enforcement of foreign awards.
Dispute settlement via arbitration usually takes one year on average to complete. During the proceedings, the arbitrator and disputing parties determine when various phases of the conflict resolution will occur.
The governing laws of the arbitration process are the law of the country where the arbitration institute is located and the law of the disputed jurisdiction, unless the parties decide otherwise. The tribunal must be impartial and independent, and an arbitrator must disclose any circumstances which could lead to justifiable doubts about his or her impartiality or independence. It is mandatory for an arbitrator to disclose these circumstances from the moment of his or her appointment and throughout the entire duration of the arbitral proceedings.
Conciliation
The use of mediation as a means to settle disputes outside the courts is increasingly being used in Thailand. It is practiced at the civil court level in Bangkok and by all provincial courts throughout the country, as well as at the central labour, family and intellectual property and international trade courts.
Conciliation is also being widely practised by government agencies and a range of private companies. It is a key tool being employed to address the clogging of court dockets and to resolve issues in public procurement and commercial contracts.
The conciliation process is often less time consuming than litigation, and in the case of real estate and construction disputes can be more cost effective, particularly as many construction contracts contain structured dispute resolution clauses. However, there is still a gap in the legal framework for direct enforcement of mediated settlement agreements. Consequently, a number of arbitration institutes and centers offer out-of-court conciliation services.
Out-of-court Mediation
Going to court can be a long, complex and expensive process. Many disputes settle outside of the courts, and out of court mediation is becoming more common.
A mediator is a neutral person who assists disputing parties in reaching an amicable settlement of their dispute. It is a confidential process that can save you time and money. It can also help you avoid the stigma associated with a negative court decision.
The court may also order conciliation at any stage of the trial. The judge can either conciliate a case on their own or appoint a reconciler from outside the court to convene closed door sessions with the disputing parties and bring about reconciliation.
In Thailand, the arbitration and conciliation processes are governed by the Arbitration Act B.E. 2545 (2002), which is based on the UNCITRAL Model Law on International Commercial Arbitration with additional Thai specific provisions. A negotiated settlement through arbitration or conciliation is highly cost-effective and can be much faster than a lengthy legal battle in the courts.
