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Another aspect relating to promotion of mediation to both lawyers and business persons is the inclusion of alternative dispute resolution like mediation into the main stream curricular in higher-education institutions. This channel can reach a vast majority of persons involved in any kind of disputes, regardless of their roles in the disputes. The more they know and become familiar with dispute resolution mechanism, the more they are willing to use mediation as a mechanism to settle their disputes. Although this channel might not be able to provide in-depth understanding and knowledge of ADR to the extent that they can practice the mechanisms by themselves, it, at least, plants a seed of awareness that is ready to grow still further if we nurture it with more information and understanding.
2.5 Channeling Disputes into Mediation Process
Notwithstanding all efforts to promote mediation, it is a futile effort if there is no mediation service available, or there is no route to bring the parties to mediation. From Thailand’s past experience, especially in the context of court-annexed and court-referred mediation, mediation has been a part of court procedure for a long time. One of the reasons that it has not been used so often is that the parties do not know where and how to pursue their interest in mediation, since there is no separate mediation service available for the parties. After the setting up of mediation centers in courts of justice around the country, the number of cases referred to mediation increases dramatically. The sheer presence of the centers creates interest by the parties, and they know exactly where to turn to if they want to have their dispute mediated. Moreover, there should be a clear work-flow for all parties and officials concerned to know how to proceed when the disputes go to mediation as well as when the disputes need to go back to court proceedings. This strategy has been carried out in various organizations that want to promote mediation within the scope of their responsibilities. They have installed a system that can help bringing disputes to mediation.
2.6 Mediation of Disputes in State Contracts
When a state agency becomes a party to a dispute, mediation in this kind of disputes poses a distinct issue not so common in disputes between private parties. In the bureaucratic process in Thailand, the Office of the Auditor-General is responsible for examining the receipt and payment of money of all state agencies and providing opinions whether the transactions are in compliance with the relevant laws and regulations. If there is any irregularity regarding the transactions, there will be a process to find an official who is responsibility for such irregularity and will be liable for any damages incurred due to such irregularity. The process is formed with commendable objectives to protect the public interest and prevent corruption. It, however, causes concerns to officials who negotiate in a mediation process on behalf of a state agency. They are usually afraid that if they give in something or compromise the rights and benefits of the state in mediation in order to reach a mutually-accepted agreement to settle the disputes, they might become liable later. Hence, in the process of negotiation, it is rare that state officials agree to compromise with private parties unless there is a clear and unambiguous rule or regulation allowing or supporting for such compromise. It is a norm that disputes involving state agencies will end up in arbitration or court, depending on terms and conditions in the relevant contracts.
The problem has been alleviated recently, albeit to some limited extent. In 2005, the Ministry of Finance has issued a notification to all state agencies that permits state agencies to enter into compromise agreements with private parties if the amount in dispute is less than 2,000,000 Baht, and the state agencies and the public attorneys who are responsible for the disputes agree that such agreements are appropriate in light of public interest in that matter without having to request for prior approval from the Ministry of Finance. This breathing space accommodates and encourages mutual settlements in mediation, as well as speeds up the process of approval of the settlements. However, a large portion of disputes between state agencies and private parties of which the amount in dispute exceeds 2,000,000 Baht still waits for further flexibility.
Another approach that has been used to alleviate concerns of public officials is to record the reasoning and information that can demonstrate good faith of all parties concerned in reaching a mutual settlement, so that, when the transactions have later been examined, there will be sufficient proof to dispel any doubt that may happen to examining officials. This approach is useful to some extent, but it might work in contrary to a basic notion in mediation where the norm is confidentiality of information exchanged in the mediation process, and record is ordinarily quite scarce. This approach in the context of disputes involving state agencies is, therefore, extremely exceptional.
2.7 Mediation-like process in criminal cases
Recently, there is an interesting movement in the administration of criminal justice in Thailand. The movement is known in other countries as the “restorative justice” process. The process, in essence, tries to shift the focus of the criminal justice from the guilt of the accused or defendant to focus more on the “victim”. On the victim side, it is aimed at trying to heal victims mentally, emotionally and, sometime, financially. On the accused or defendant side, the process tries to make the accused or defendant aware of the consequence of his conduct that causes suffering to the victim, and involve the accused or defendant in the process of healing the victims’ suffering. This process may sound quite a whole new procedure that has nothing to do with mediation as we know it. What happens in Thailand is that we adapt the mediation process to serve additional purposes required by this “restorative justice’ movement. The reasons that make this adaptation possible are some similarity in the restorative justice process and that of mediation. |
