Strengthening the Independence and Efficiency of the Judiciary in Thailand

By Dr. Thammanoon Phitayaporn

scheduled consecutively. Now there is an effort to change the way to set up hearing schedules by adopting a consecutive-day basis, for example, hearing days are scheduled on March 5-9, 2001. However, consecutive day scheduling is controversial. Some propose that the courts should take a phased approach into consecutive day scheduling. Proponents of the phased approach argue that starting with pilot court scheduling during a transitional period will ensure support by stockholders and ensure that the whole system has time to adjust.
There is also a plan to replace the existing decentralized hearing-schedule system with a centralized hearing-schedule system.(18) It is believed that the centralized system will assist implementing the consecutive hearing-day basis. In addition, the plan calls each court to establish a center responsible to remind witnesses to attend the scheduled hearing.

After the courts have used the measures, it is necessary to assess the implementation. Information and comments from the courts and all other stackholders will be valuable for improving the implementation plan.

B. Court-Annexed Mediation

Mediation was not clearly parted from the hearing process in the traditional Thai courts. Typically, a judge will begin to mediate cases at the first hearing. If the cases could not be settled, the judge would begin hearing witnesses. Several years ago, a mediation program was established in some courts including the Civil Court and the Civil Court of Southern Bangkok. The program was designed to be separate from the hearing process. The judge who mediates a case cannot Ir. the case at the later stage, and mediation dockets are not attached to trial dockets. Furthermore, mediation is conducted in a conference room, not a courtroom, in order to provide a n atmosphere proper for mediation. Additionally, at a first hearing session parties may agree to use mediation program. In such case, a judge will refer the case to the mediation program.

In the year 2000, the Civil Court(19) started providing an option for parties to refer cases to mediation before the first hearing day. This practice has helped parties settle their cases at an earlier stage. The Criminal Court has also used mediation on some specific criminal cases.(20)

Federal courts in the U.S. have successfully used Alternative Dispute Resolution (ADR), including mediation processes, to reduce caseload. Due to ADR and other measures, less than 10% of civil cases arc tried. Over 90% of civil cases can be settled or finish before trial.(21)

After examining the ADR system in the U.S., the U.K. and other countries as well as the existing system in Thai courts, the Thai Alternative Dispute Resolution, Office of the Judiciary, set a model of Court-Annexed Mediation for a pilot project. Four pilot courts (22) were Provincial Court of Nontaburi, Provincial Court of Chonhuri, District Court of Northern Bangkok, and District Court of Nontaburi.

The objectives of the pilot project were to make certain that the new model of Court-Annexed Mediation works effectively in Thai Courts and that the model could be adjusted before implementation. The following are major principles of the pilot project:
1. Establish a Court-Annexed Mediation Center Each court establishes a Court-Annexed Mediation Center. A few court officials are assigned to the Center to facilitate mediation process.

2. Separate Mediation from Hearing Process The judge who mediates a case shall not try the cafe at a later stage. Mediation dockets are not attached to trial dockets. These practices convince the parties that disclosed information during mediation will cause no negative effects to them in a trial. Moreover, mediation is conducted in a conference room not a courtroom in order to provide atmosphere proper for the mediation.

3. Refer Cases to Mediation during the filing day and the first hearing day Court cases can ire referred to mediation during the filing day and the first hearing day. The purpose is to promote settlement by mediation at the earliest stage, a practice which will reduce workload in the courts.

4. judge and Nun-judge Mediators In the past, only judges mediated court cases. Under the pilot project, the courts can assign not only judges but also selected person who are not judges to mediate court cases. The non-judge mediators selected by the court are retired judges, retired government officials, lawyers, persons having experiences in various fields, etc. While the number of judges are limited, non-judge mediators can help reducing judges' workload. Furthermore, their expertise's in various areas help them mediating cases efficiently. For example, owners of car repair service can use their expertises mediating car accident cases.

5. Refer civil and criminal cases to mediation Besides civil cases, some types of criminal caws can also be settled by mediation, i.e. criminal cases of compoundable offences and criminal cases filed by individuals or private entities.(23) In case that parties can settle their disputes, a settlement agreement may be concluded or the complaint can be withdrawed.

The Court-Annexed Mediation pilot project was evaluated by a team of professors from Sukhothai-thammatirat University. According to the evaluation report, 56.6% of cases referred to mediation could be settled. In case of the district courts, over 80% of cases were settled by mediation. In addition, the report states that the parties of 95.3% will refer their cases to mediation if they have disputes in the future. The lawyers of 92.9% will recommend their clients to use mediation in the future. However, the number of cases referral to mediation are limited. Only 5.5% of civil cases in the courts were referred to the system.

At present, implementation of Court-Annexed Mediation is a major policy for strengthening efficiency of the judiciary.(24) Until now, more than 10 trial courts in 9 regions have adopted the Court-Annexed Mediation. The program is now expanded in trial courts all over the country.

To support the courts implementing the system, a guidebook was prepared and distributed to stakeholders. Seminars and training programs for court management. judges, non-judge mediators, court officials, public prosecutors, lawyers, etc. have also been organized. In addition, public relations is conducted to promote using mediation. There are many methods to refer court cases to mediation. The following methods have been used in the Thai Courts:

1. Parties agree to use Mediation Judges ask both parties whether they can accept mediation. If they agree to do so, the case will be referral to mediation. Otherwise the court will try and adjudicate the case. The number of cases referring to mediation under this basis are limited.

Part 4

_______________________________________________________________

(18) The principle of centralized hearing-schedule system is similar to the system adopted by the U.S. District Court in Eastern District of Virginia, which is referred to as "the Rocket Docket" system.