While litigation is the most common way to settle disputes, many cases are resolved by alternative means. These include conciliation, arbitration and mediation.
Litigation involves a court trial where a judge makes a binding judgment that is enforceable under the law. Litigation is generally costly, time consuming and adversarial.
In Thailand, courts resolve disputes through trials and hearings. The court process is a long one and it can easily take years to reach a judgment. This is largely due to the high volume of cases, which exceeds the capacity of judges and court officials.
A major challenge for the Thai judicial system is how to expedite case resolution and improve access to justice. A solution is mediation, which can be used at any point in the litigation and even after judgment has been obtained. In recent years, the judiciary has introduced a number of reforms to make mediation more efficient, including making it mandatory in some types of cases and allowing online mediation.
In the context of civil cases, the courts in Thailand manage cases through a series of hearings, starting with a case management hearing to discuss administrative matters. This includes identifying the issues in dispute, discussing the number of witnesses to be presented, and setting trial or witness hearing dates.
Judges are required to operate independently in the trial and adjudication of cases and must adhere to the Constitution and laws, ensuring that proceedings are fair and swift. They are also subject to a code of ethics on maintaining impartiality and independence, with disciplinary consequences for misconduct. In addition, a judge may not hear a case if they have a vested interest or relationship with any of the parties or if there is a conflict of interests that could affect the fairness of the trial or judgment.
Mediation is a non-binding process during which the parties are encouraged to communicate and come up with potential solutions. Generally, the parties will be represented by a lawyer who will facilitate communications and help to generate ideas. This type of dispute resolution is highly effective as it allows the disputing parties to avoid litigation costs and potentially reach a settlement. If mediation fails to produce a successful result, the parties can still pursue litigation in court but this will be much more costly.
Disputes resolved through mediation have become an increasingly common method of alternative dispute resolution in Thailand, especially for small claims cases where the legal fees may exceed the amount in controversy. Mediation can be arranged on an out-of-court basis or as part of a court supervised procedure. In fact, the Thai courts are promoting mediation as they have demonstrated that it can reduce case backlogs and increase efficiency.
During a case management hearing, the judge will ask the disputing parties if they wish to mediate the case. If they agree, the mediator will then be designated. During mediation, the disputing parties will meet in separate rooms and discuss potential avenues for resolution. The mediator will caucus (consult privately with one party) if required to gather additional information which is then shared during the joint discussion.
Arbitration is an important method of dispute resolution in Thailand. It is an alternative to court proceedings and can be used for both domestic and international commercial disputes. Arbitration can be more cost effective than court proceedings and it also allows parties to resolve their dispute in private. Arbitration is also generally quicker than court proceedings.
It is a common practice for parties to include arbitration clauses in their contracts. These clauses typically stipulate that any dispute arising from the contract will be resolved by arbitration. This is a popular method of dispute resolution for companies conducting business abroad.
In-court arbitration is also available in Thailand. However, it is more difficult to use than out-of-court arbitration. In-court arbitration is governed by the Arbitration Act of 1987, which has several quirks and local anomalies that reflect its transitional nature, as it sought to move from traditional, court-influenced arbitration procedures toward more modern and internationally accepted standards.
Another hindrance to the increased use of arbitration is the lack of a pool of experienced arbitrators. Despite the recent easing of visa and work permit requirements, it remains challenging to recruit suitably qualified foreign arbitrators in Thailand. This is partly because the low daily payment rate for tribunal appointments has made the work unattractive to many Thai candidates and all but the most committed foreign arbitrators.
Conciliation is a process that brings different parties together to discuss their case and look for common ground to resolve the issue. This allows both sides to better understand the other side’s perspective and eliminate misunderstandings based on misinformation. The conciliation process is usually held face to face, but can be conducted over the telephone in some cases. It is also a confidential process, so all information that is discussed is not available to the court in the event of any future litigation.
This is a common method of dispute resolution in Thailand, especially when dealing with employment issues such as disciplinary cases, pay disputes and grading matters. However, it is not restricted to these types of issues and can be used by any employee or employer regardless of the nature of their claim.
In the past, most civil disputes were not required to go through a conciliation procedure but in recent times, some courts have started to require mediation before witnesses hearings. This is due to the high number of cases that exceeds the capacity of judges and court staff, resulting in lengthy delays in resolving cases.
The government is continuing to promote alternative dispute resolution mechanisms through policy initiatives, aimed at reducing the backlog of cases in the courts and improving efficiency. It is important for businesses to be aware of these mechanisms and consider how they can use them in their dispute resolution processes.