Alternatives to litigationi Overview of alternatives to litigation
Mediation is one method for expediting dispute resolution. Compulsory mediation is used in Thailand to resolve family and labour disputes. Thai law governs mediation both in court and out of court.
Arbitration is an alternative means of dispute resolution. Parties to a dispute may mutually agree to submit a dispute to be resolved by a tribunal of arbitrators. An agreement to arbitrate can be made either before or after the dispute arises. If an agreement to arbitrate exists and is valid, a case that is filed in a national court can be struck from the court's docket upon a motion by the counterparty.ii Arbitration
The Arbitration Act provides the legislative framework that governs the conduct of arbitration in Thailand. Thai arbitration law does not separate arbitration law regimes between domestic and international arbitration. Therefore, both arbitrations seated in Thailand and seated in other countries are subject to the same Act.
The Act also provides limited grounds for Thai courts to refuse the recognition and enforcement of arbitral awards, which are essentially the same grounds as stipulated in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (New York Convention 1958), to which Thailand is a member state. Thailand is also a member state of the Convention on the Execution of Foreign Arbitral Awards, 1927 (Geneva Convention 1927). Therefore, an arbitral award made in a member state under either of these conventions will be recognised and enforced in Thai courts.
An arbitral award is final and binding against the parties in the arbitration proceedings. Under the Act, neither party can appeal against the merit of the arbitral award, either to the arbitral tribunal or the courts.iii Mediation
Mediation can be carried out either in court after a claim commences or out of court, in which case the disputing parties agree to undertake mediation without the court's involvement.
Before filing an action, the prospective party may file a motion with the court that has jurisdiction, if an action is instituted to request that the court appoint a conciliator to carry out mediation with a view to encourage the parties to reach agreement or compromise on the matters in dispute.17
If the other party agrees to participate therein, the court has the power to summon the parties to appear before the court in person, with or without their lawyers, and to appoint a conciliator to carry out mediation.
If the parties concerned can reach an agreement or a compromise, the conciliator will submit the agreement or compromise agreement to the court. If the court decides that the agreement or compromise agreement corresponds to the intentions of the parties and the principles of good faith and fair dealing, and is not in violation of the law, the court will cause the parties to sign the agreement or compromise agreement.
The Dispute Mediation Act governs out-of-court mediation, and came into full force in 2019. Mediation in a civil dispute, pursuant to this Act, only opens for:
- disputes concerned with land, other than disputes regarding ownership;
- disputes between heirs that concern property to be obtained by way of succession;
- other disputes as prescribed in the accompanying royal decree; or
- disputes in which the amount of the claim does not exceed 5 million baht or an amount as prescribed in the royal decree.
Although the Act has been enforced for two years, the royal decree has not yet been published.
Under the Dispute Mediation Act, mediators must be registered with the regulatory authority set up under the Act. Mediators must have attended approved training courses and have experience in fields that are beneficial to dispute mediation. Mediators have certain duties and powers, including to determine guidelines for mediation, assist and make proposals to the parties to settle the dispute, and act impartially.