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2.2 Training of Mediators
Just like arbitration is as good as the arbitrator, mediation is also as good as the mediator. The most important part of mediation is the work of the mediator. Good mediators can build a rapport between the parties in dispute and, thereby, encourage more exchange of information, feeling, emotion and understanding of each other. One of the reasons that hinder the development of mediation in Thailand in the past is the misunderstanding that mediation skills and ability was some kind of a gift. That special talent naturally belonged only to someone who was born to be a mediator. Knowledge, technique and skills needed to successfully carry out mediation were kept with those gifted mediators, and were virtually not conveyed from generation to generation. All of these misunderstanding have started to unfold during the latest movement in mediation practice in Thailand. Although not everyone can be a good mediator, anyone who is keen to become a good mediator can learn the necessary techniques and practice to gain more skills. Knowledge on how to successfully mediate can be conveyed from those “gifted” mediators to those who are not so gifted. Many organizations working in the field of mediation in Thailand have carried out training programs and courses to train how to be a good mediator. Among these program and courses, there are two approaches used to design the curricular.
2.2.1 Generalist Approach
Under this approach, it is believed that the skills to successfully mediate are universal. If a mediator truly understands these skills, techniques and knowledge, he or she can mediate any kind of disputes, regardless of the specific nature of a dispute. The notion behind this approach is that a mediator is not a judge or an arbitrator who needs special knowledge on the subject matter in dispute to decide the outcome of the dispute; instead, the main duty of a mediator is to facilitate the exchange of information, feeling and understanding relating to a dispute, assist the parties to brainstorm the possible solutions available at the time of the mediation and help the parties design and decide on the solution which may or may not be the best, but which can mutually be accepted by all parties concerned.
In the training, trainees will gain knowledge of all aspects of mediation and ADR. For example, they will be taught about all possible ADR mechanisms that parties to a dispute may use to settle their disputes, as well as the different characteristics among these mechanisms and the advantages and disadvantages of each mechanism. Then, trainees will learn the process and steps for carrying out mediation from preparation, opening statements, gathering information and understanding interests of the parties, caucus, brainstorming solutions and closing of mediation. Trainees will also be taught about various skills necessary to become a good mediator, for example, active listening, questioning, breaking impasse, building rapport and trust, brainstorming etc. A successful training program should utilize various methods of training from lecture, simulation, role play and group discussion. Simulation and role play has always been an excellent method of teaching someone to be a mediator, because these two methods open up a chance for trainees to express their understanding and interpretation of all information taught in class, as well as a chance for them to receive comments from trainers for further development.
2.2.2 Specialist Approach
Under this approach, it is believed that training of mediators for a specific type of dispute needs a specific training course tailored especially for that kind of disputes. For example, a mediator for environmental disputes needs to have extensive background on environmental issues; a mediator for intellectual property disputes needs to have reasonable knowledge on the relevant intellectual property laws, and so on. They need to be trained on specific issues that are likely to occur in such kind of disputes.
However, even in these so-called special programs, the basic knowledge and techniques taught to carry out mediation are the same as those taught in any general course on mediation. The process and steps of mediation under these two approaches are not different in any significant aspects. Skills such as active listening, questioning, breaking impasse are also discussed and trained in these kinds of programs as well. The actual difference between these two approaches lies in the teaching of “language” of the disputes, i.e., specific terms that the parties use when they discuss about the disputes. This understanding of the “language” of the disputes is important because it enables the mediators to understand the nature of the disputes being mediated and thereby the interest of the parties. The understanding is also important in the sense that it builds trust in the mediator who presides over the mediation. If the parties feel that the mediator does not understand what they discuss, it will be difficult for the mediator to lead the discussion into a fruitful way, since it is hard to believe that a person who does not understand the dispute will be able to provide a worthy recommendation. Having said all of these, when we look deeper into these two approaches, the differences are not as significant as they first look like. If a mediator who is trained under the generalist approach gains some knowledge about what the specific term or issue really means, the mediator will also be able to understand the dispute and successfully mediate the dispute, because the core principles and methods in any kind of mediation are not so different.
2.3 Relevant Legal Issues
Although mediation itself is not a legal-intensive mechanism and focuses more on interests of the parties, rather than the right and wrong of each party’s behavior, it still has some legal issues to ponder. These legal considerations may hinder the development and use of mediation if they are not well taken care of.
2.3.1 Statute of Limitation
Almost every legal system in the world has similar provisions in the laws that prescribe periods of time within which a person with a claim against another person has to initiate an action in court. Otherwise, their claims might no longer be enforceable in court. If the claimant takes an action in court within such period, the limitation period will usually stop running. Under the Thai laws, if the disputed contract contains an arbitration clause and the claimant commences an arbitral proceeding, the limitation period will stop running as well. However, if the claimant takes the dispute to mediation, rather than to arbitration or the court, the claimant will not enjoy such privilege. Therefore, in case where the parties are willing to negotiate or mediate their dispute, but the limitation period is going to elapse, the party with a claim will have no choice but take an action in court to preserve his or her right. Although taking an action in court does not prevent mediation, if the parties still wish to do so, it does changes the landscape of the dispute and the atmosphere between the parties. Moreover, in taking an action in court, the parties will incur additional costs and expenses which will effect the terms that are negotiated, since the parties who incur such costs and expenses have to take them into consideration and have to decide who should bear which costs and expenses. Once an action is taken in court, the court procedure will usually continue as it has been prescribed by law. The parties, hence, will also have to participate in such court proceeding. Otherwise, they might risk losing some rights. As a practical matter, all parties will not take such risk and participate in court proceedings. Such proceeding may distract the parties from the amicable negotiation in which they have engaged prior to the action. Such proceeding will also create a hostile atmosphere between the parties that will make it more difficult to reach an amicable solution. |
