Dispute Resolution in Thailand is increasingly being sought outside of the classical judicial system. Analytics has handled disputes through a number of international and domestic arbitration institutes.
The Alternative Dispute Resolution Office is responsible for coordinating and conducting court-annexed mediation and providing legal advice on mediation and conciliation to the public. The mediation system is designed to ensure satisfactory settlements without winners or losers and contributes to a harmonious society as people proactively participate in the dispute resolution process.
Resort to Court Action
Many disputes in Thailand are resolved by resorting to the court system. This often results in expensive and lengthy litigation that is difficult for disputing parties to manage. The Thai legislature has been working on strategies to encourage dispute resolution alternatives to litigation.
Mediation, arbitration and conciliation are the most commonly used alternative dispute resolution options in Thailand. However, in key industry sectors like aviation, banking, finance and technology; the complexities of local labour law, foreign employment laws, and varying cultural considerations make it challenging for employers to find an appropriate dispute resolution mechanism.
Under the Civil Procedure Code enacted in 1935, a judge can order pre-litigation mediation. However, due to a heavy caseload of the courts’ trial dockets months could pass before the parties are scheduled for a conciliation hearing. Moreover, a conciliation decision is not binding. The conciliation process is a non-binding discussion between the parties in which the mediator facilitates communication and assists the parties in reaching a voluntary settlement agreement.
The judicial system can be a costly and lengthy avenue to resolving disputes. To reduce litigation backlogs and to save on cost, Thai lawmakers have been working on strategies to encourage disputing parties to consider alternative dispute resolution (ADR) options.
One of these ADR options is mediation, which can be conducted outside the court setting. It is a flexible process that allows the parties to move away from legal concepts of fault and focus on their shared interests. When negotiated properly, mediation can also do more to truly address the underlying issues than a contested hearing.
THAC and the Ministry of Justice have been promoting mediation as a solution to clogged courts. It has been shown to reduce costs, minimize appeal cases and facilitate compliance with enforceable settlements. A growing number of civil and financial disputes are being referred to the mediation center with the consent of the disputing parties. A new law on the subject has recently been passed, namely the Dispute Mediation Act.
As a way to unclog the court docket and avoid litigation, the Thai courts are using alternative dispute resolution mechanisms such as conciliation. Conciliation is practised at all levels of the courts including in the civil courts, family and labour courts, as well as the Central Intellectual Property and International Trade court.
The process is informal and confidential and, unlike arbitration, is not binding until and unless the parties agree on a settlement agreement. As a result, it is much faster and less costly than a conventional lawsuit.
Construction disputes may arise due to a variety of reasons, including omission and errors in a contract document; unexpected site conditions; issues with an engineer or project manager; delays in payments; and problems with the client’s finance department. Most construction contracts contain a structured dispute resolution clause for the resolution of these kinds of disputes. Our Thailand construction dispute lawyers are familiar with the conciliation process and can help you to resolve your issue quickly and cost-effectively.
Arbitration is a method of dispute resolution that can be used in a variety of disputes. It is a quicker alternative to court proceedings and can be conducted in either English or Thai. It can also be conducted on an international basis if the parties agree to it.
Generally speaking, the arbitration procedure is similar to that of a court hearing. The tribunal hears both sides of the case and makes a decision. The arbitrator can order witnesses and can conduct an expert witness examination. He or she will then render a decision which is binding on the parties.
It is advisable to include an arbitration clause in agreements, especially those between a party located in Thailand and a party located abroad. This helps to avoid any disputes which may arise and to prevent the issue of a conflict of law arising. In addition, there are several institutes and centers which offer arbitration services in the country.