MEDIATION OR CONCILIATION IN THAILAND
Mediation, also called conciliation, is a non-binding method of dispute resolution in involving a neutral third party, who tries to help the disputing parties reach a mutually agreeable solution. (Mediation differs from arbitration, which is binding). The roles of the mediator are to listen to the arguments of disputing parties; ascertain the true facts, circumstances and nature of the dispute; identify the cause for each party’s grievance, and aid the disputing parties to reach a settlement. As Byron A. Gardner in his A Dictionary of Modern Legal Usage did so pithily point out, mediation is merely ‘assisted negotiation’.
In Thailand as with much of the world, civil courts have been urging disputing parties to resort to mediation and thereby arrive at an amicable settlement. This is an especially significant silent success of sorts since the practice of mediation is not statutorily recognized under either the Civil Procedure Code of Thailand or even the Arbitration Act, B.E. 2545 (2002). In their paper, Mediation in Thailand: Keys to Succeed, Khun Supanat Permpoonwiwat and Khun Chalat Pratheuangrattana of King Prajadhipok’s Institute noted that statistically mediation is the recourse of choice in disputes of all kinds, be it family, workplace or school, private sector, or even between the State and its citizens.
Thais seem to prefer mediation over all other forms of dispute resolution including arbitration and litigation. Why is this so? Conflict avoidance, at least in principle, has always been an integral part of the Thai ethos of maintaining situational control and personal composure. Given its informal and voluntary nature, mediation is fast gaining in popularity as it offers a cost-effective solution to prevent a potentially protracted and incendiary outcome.
While some mediators may not have formal training, and rely on their seniority and social presence to diffuse hostilities and suggest settlement, a keen understanding of conflict management coupled with psychological assessment skills are invaluable for any mediator. Establishing rules for the mediation process are also an effective means of channeling the dispute. Listening, paraphrasing, reframing, evaluating, asking and answering questions are some of the more mundane, but no less crucial characteristics that a trained mediator would be able to contribute to mediation proceedings.
The Office of the Judiciary funds mediation for small claims cases where legal costs may far outstrip the remedy that is sought.
In Thailand, civil courts automatically incorporate a mediation procedure into all disputed matters appearing before a court of first instance. It is only if such mediation fails that a Thai court will then proceed with litigation. In cases where mediation is successful, Thai courts will treat the resulting compromise or settlement agreements as judgments and these can be enforced against the losing parties. In most commercial contracts, an abridged mediation can be included as a condition precedent to more involved arbitration process.