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2. MEDIATION
By any standard, it is now not an exaggeration to say that mediation is one of the fastest growing ADR mechanisms and possesses an enormous potential to grow still further. Mediation gradually plays an increased role in various sectors across the economy and the society in general. Its virtues have been increasingly recognized and appreciated. This phenomenon has occurred in Thailand as well. During the past decade, Thailand have seen various mediation centers being established, many training courses being organized, many mediators being recruited and trained and many disputes being mediated. This kind of movement stirs quite a widespread interest in mediation, and generates even more involvement with mediation in one way or another. Along this situation, there are several issues about mediation having been discussed and debated among those working in the field of ADR, mediation in particular. This paper will try to walk you through these various issues being discussed in Thailand.
2.1 Overview of Mediation in Thailand
2.1.1 Court-annexed mediation
As mentioned above, mediation in Thailand has played an important role in various parts of the economy and society. The court of justice is one of the early users that incorporate mediation into its working process. The use of mediation has been prescribed in the Civil Procedure Code1 since 1934, but the utilization of mediation in the court has been inconsistent. It generally depends on the policy of court executives at a particular period. In some period in the past, the court extensively promoted mediation to parties in litigated cases, and tried to encourage them to use mediation. However, once there were changes of court executives, the policy toward mediation would also be affected. Mediation has just been systematically developed and steadily grows when the Office of the Judiciary, the administrative arm of the court of justice, has established the Alternative Dispute Resolution Office (or the “ADR Office”2) to be responsible for the development of ADR. The ADR Office has helped the courts of justice set up a mediation center to handle court-annexed mediation. In carrying out this task, the ADR Office also issued guidelines3 for setting up mediation centers in order to bring practices of various courts throughout the country into the same line. This similar practice makes it easier for parties in litigated cases to understand the system and access to mediation service of the court. Cases being mediated in a mediation center of the court comprise almost all kinds of cases of civil and commercial nature, for example, cases involving loan agreements, hire-purchases, land disputes, credit card debt, estates of the deceased, family disputes etc.
2.1.2 Mediation in Healthcare
In the past, disputes between healthcare providers and patients happened rarely, because patients and their relatives viewed the works of medical doctors and nurses with high respect. They believed that healthcare providers always tried their best to save patients’ life and well-being. Anything wrong happening to patients was something beyond capability of healthcare providers, and, therefore, were not their fault. This kind of attitude, however, started to change during the past several years. The works of medical doctors and nurses have become less sacred. Patients and their relatives begin to realize that healthcare providers are human who can negligently provide their services. For example, they may misinterpret the symptoms and other available information and erroneously diagnose the illness; they may negligently cause blood contamination; or, they had not conducted medical test that should have been done. Due to this change of attitude and view, patients and their relatives become more willing, or sometimes even eager, to take action against healthcare providers. Cases involving medical malpractice started to become regular news on the front pages of newspapers.
In coping with the above situation that is likely to worsen over time, the Ministry of Public Health has actively promoted mediation in healthcare service. In this effort, the ministry has established the “Center for Peace in Health Care”4 to promote mediation as a primary method to solve disputes between healthcare providers and patients. Personnel in state hospitals have been trained how to initially handle patients and their relatives’ dissatisfaction. If the initial handling cannot alleviate the situation, they will try to refer the conflict to the center for peace in that particular hospital for mediation. This kind of process helps reduce a number of disputes litigated in court.
2.1.3 Mediation in Environmental Issues
A side effect of economic growth and development is the deterioration of environment. Such effect is caused by growing number of industrial factories that release significant amount of pollution, by exploiting natural resources without proper restoration plan and action, or by disrupting the ordinary way of living of people in the vicinity of the economic activities etc. The Department of Environmental Quality Promotion, Ministry of Natural Resources and Environment, has realized that such effect can easily cause conflicts between those who cause the detrimental effect on environment and those who suffer the effects. The conflicts, if not properly handled, can result in violent confrontation that produces nothing but rift in society while the deteriorated environment will only worsen. The department, therefore, has started their mediation program, by training mediators in environmental disputes and encouraging the use of mediation in environmental disputes. The program has been carried out relatively recently, but shown significant potential to reinforce the role of mediation in this area.
2.1.4 Mediation in Public Administration
King Prajadhipok’s Institute, which is a research and development arm of the legislative branch responsible for promoting democracy and broadening political knowledge of the people, has established “Center for Peace and Good Governance” to promote understanding of mediation among public officials. The center has carried out several numbers of mediation training programs for public officials during the past several years. The works of the center, however, is limited only to training. It does not provide mediation service. |
