Thailand Law Journal 2010 Spring Issue 1 Volume 13

2.3.2 Protection of Confidentiality
One of the crucial aspects of mediation that facilitates the exchange and flow of information among parties concerned during a mediation session is the confidentiality of the disclosure of such information. Mediators will be able to effectively help the parties reaching an agreement only when the mediators truly understand the nature of the disputes, actual interests of the parties which may or may not be the same as those expressed in a formal document submitted to the court, arbitral tribunal or others, the tentative proposal as well as any compromise that the parties wish to offer to settle the dispute. These kinds of information will not be disclosed or shared by the parties if they feel that the information may be adversely used against them in court or other proceedings in cases where the parties cannot settle their disputes in mediation. For example, a proposal to pay another party a sum of money, if its existence is allowed to be adduced in court, may be used to support an argument that the party has admitted his or her guilt in other proceeding; such risk will discourage the party from proposing any offer at all even though the proposal is made solely because the party no longer wants to involve in the dispute and want to settle everything once and for all without considering himself or herself guilty; the amount proposed is just worth paying when compared to all troublesome proceedings to be carried out later as well as the costs and the risk of uncertainty in the final outcome.

Presently, parties to a mediation process protect the confidentiality of the information disclosed in a mediation process by agreeing at the beginning of the mediation not to use any information or proposal disclosed in the mediation in any other proceedings, either in court, arbitration or otherwise. The agreement is certainly a lawful and binding agreement. However, the manner in which such agreement will be enforced is still uncertain. On the one hand, it might be argued that the agreement is just another kind of agreements; if there is any breach of any provision in the agreement, the party whose rights are infringed has to take a separate action to enforce the agreement and claim for any damages that the party incurs due to the breach. In this case, the party will face additional costs and troublesome proceedings while the amount of damages is, in reality, difficult to prove in court. On the other hand, it may be invoked in the court cases in which disputes are pending, and the parties may ask the court to enforce such agreement by disallowing any adduction of confidential information agreed by the parties not to be disclosed in court. Under this application of the laws, any harm that might occur from the disclosure can be avoided in the first place. However, if there are any argument regarding the existence and enforceability of the agreement not to disclose information, the court may need to conduct a hearing on this particular issue and, thereby, prolong the original action. Regardless of the way in which the laws should be construed, it is still necessary to have a certainty as to the rules to be applied in this situation so that all parties concerned will be able to appropriately plan their course of action.

Another issue that is relevant to the confidentiality of information disclosed in mediation is the authority to summon persons participating in mediation, including mediators, to testify in court, because, although there is a rule preserving confidentiality of information disclosed in mediation, the rule may be circumvented by summoning those who are aware of such information to testify before the court. Such testimony will, in effect, reveal all information that is meant to be kept secret. Any law or rule to govern confidentiality in mediation should, therefore, deal with the issue of summoning persons like mediators to testify. Those countries that have evidence laws prohibiting evidence under privileges or immunity like attorney-client or doctor-patient privilege may extend such kind of privileges to mediators. Currently, Thailand does not have such rules in place.

2.3.3 Enforcement of Compromise Agreement
Once mediation bears fruit, the parties will usually enter into an agreement that specifies all terms and conditions to govern the conducts of the parties thereafter. If a party to such agreement fails to comply with any terms or conditions, the other party will have to enforce the agreement by taking action in court, except that there is already a judgment on agreed-terms or a consent arbitral award regarding such agreement. This will entail another cumbersome process. To reduce the burden and induce parties to refer more disputes to mediation, it might be helpful to streamline the enforcement process by emulating the process of enforcement of arbitral awards with clear and specific criteria for refusal of enforcement of this kind of agreements.

2.4 Promotion of Mediation
Those who are familiar with mediation and its benefits are willing to turn to mediation when they face disputes. For those who are not so familiar, they are quite reluctant to resort to mediation even though their disputes are those kinds of disputes that can be resolved by mediation without difficulty. They may even be skeptical about mediation if the other party in dispute suggests or proposes the use of mediation in their disputes. This lack of familiarity and understanding of mediation is one of the obstacles that limit the potential of mediation. To overcome this obstacle, efforts and contributions from various sectors are needed.

One of the groups of professionals who can significantly contribute to the success of mediation is lawyers. When a person faces a dispute, especially that with high value in dispute, he or she tends to go to a lawyer or attorney whom he or she trusts. Any recommendation or suggestion by lawyers will usually be followed, or, at the very least, taken seriously, by the clients. Otherwise, the clients will not go to see the lawyers in the first place. In Thailand, lawyers still prefer litigation to mediation. This view is understandable because litigation and the courts are the places where lawyers can demonstrate their client their worth to the fullest extent and they are more familiar with all procedures in court. Moreover, the method of calculating attorney fees may be in proportion to the length of time spent in handling cases. The longer the cases go, the more fees are generated. Therefore, the traditional recommendation of lawyers to their clients is litigation. This situation in Thailand has, however, gradually changed, and lawyers or attorneys are now more willing to recommend and participate in mediation than in the past. From Thailand’s experience in this matter, we need to give opportunity to lawyers to have a reasonable role in mediation process, and make sure that resorting to mediation will not cut off lawyers from the resolution of disputes. When they are confident that mediation still offers opportunities to demonstrate their capability useful is settled, they can move their attention to the next dispute waiting in line. Moreover, when a dispute can be settled within short period of time, it means that the lawyers have completed their works; therefore, the billing time will come sooner, not later. From a business perspective, this will generate more cash flow for the firms.

Although lawyers have recommended mediation to clients, the final word still rests with the clients, especially those in the decision-making rank. To convince these decision-makers to use mediation, it is necessary also to convey all benefits that they can obtain in mediation to these decision-makers, especially the opportunity in mediation to control the outcome of the disputes, the speed of the process, the saving of costs and expenses and the avoidance of bad publicity etc.