Arbitration, Mediation, and Conciliation in Thailand

Alternative Dispute Resolution is different from Conventional Dispute Resolution. Conventional Dispute Resolution involves litigation and adjudication in court. Litigation is generally a hostile and antagonistic where a decision is made by a judge. Litigation can be intimidating and risky. Generally one party wins and the other party loses. Alternative Dispute Resolution attempts to return some of the control back to the participants.

There are three forms of Alternative Dispute Resolution. The three forms of Alternative Dispute Resolution in Thailand is Arbitration, Conciliation, and Mediation.

Arbitration

Arbitration in Thailand is governed by the Arbitration Act B.E. 2545 (2002) which is based on the UNCITRAL Model Law of International Commercial Arbitration. In Arbitration, the parties agree to select a third party to make a ruling on their dispute. In addition, the parties can select the laws, rules, or framework of the decision. The manner of an arbitration proceeding is less formal but similar to a traditional court proceeding. Each party makes their case to the arbitrator. In response, the arbitrator and the opposing party can ask questions. Following the presentation of evidence, the arbitration will usually make a binding decision on the case.

Arbitration is different from the traditional court system. In an arbitration case, the arbitrator is generally an expert in the field of dispute in contrast to a judge who might handle a wide variety of cases. Arbitrations are generally more flexible and faster than a traditional court system. Arbitrations can occur anywhere as long as the parties agree in contrast to a traditional court case which is generally held at the court house and is determined by the court’s calendar. In addition, most arbitration proceedings are non-public and confidential in contrast to a public court system.

Mediation vs. Conciliation

Mediation and Conciliation is an integral part of the Thai dispute resolution program. Most court cases in Thai courts are required to participate in mediation prior to a final court trial. The department of labor sends labor disputes to a trained conciliator to try to settle the dispute.

Mediation is when a neutral third party attempts to bring the parties together. The role of a mediator is generally as a non-partisan party who listens to both parties in an attempt to ascertain the facts of the case, true issues of the disputes, and identify what the parties each truly want from the dispute. Through the opening of dialogue, the mediator attempts to bring the parties to an agreement. The agreement will be on the terms agreed by the parties and hopefully be less antagonistic.

Conciliation is different from mediation. In mediation, the mediator is a neutral third party. While in conciliation, the conciliator is an active party in the discussion to bring the parties to an agreement. In contrast to just listening and being empathetic, a conciliator is generally an expert in the field and will actively discuss the issue with each party. The conciliator attempts to bring the parties from the issue of what they “want” to what will probably happen if the dispute is placed in front of the court. The conciliation procedure is outlined in Section 22 of the Labor Protection Act.

While the Alternative Dispute Resolution has made the issue of dispute resolution easier for the parties, it is still important to have legal representation in the process. The role of an attorney is to ensure that the interests of their client are represented. They can counsel their client on the consequences of certain provisions in an agreement for mediation or conciliation cases. An attorney may also be better at presenting a case in an arbitration proceeding.

 

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Category: Litigation