On September 8th, 2020, the Thai government passed a Royal Decree permitting court-supervised pre-litigation mediation to take place prior to filing a Plaint with the court. The Civil Procedure Code Amendment Act (No. 32) BE 2563 (2020) (the “Act”) will take effect from November 7th, 2020 onwards, 60 days after its publication in the Government Gazette.
Mediation in Thailand
In Thailand, mediation may be carried out either in court, which is conducted after the Plaint is filed but prior to entering the lawsuit, or out of court, in which the disputing parties agree to undertake mediation without the court’s involvement. Parties may opt to mediate their dispute at any point before or during the legal process.
Civil court proceedings are initiated when the Claimant’s attorney files a Plaint to the court. If the court accepts the Plaint, a court officer will serve the court summons and a copy of the Plaint to the Defendant, a process which may take several months to complete after the claim is filed. Once the Defendant has filed a Defense, a pretrial hearing will be scheduled about sixty days after the filing. At the pretrial hearing, the judge will ask if the parties wish to mediate their dispute; if the parties wish to do so, mediation hearings will be scheduled. Furthermore, when appropriate, the court may order the parties to engage in mediation at any point in the trial.
Pre-litigation civil mediation under the Act
Under the newly announced Act, a party may submit a motion to the relevant court to request a mediator to be appointed to their dispute without needing to first file a Plaint. The motion should include the names and addresses of the involved parties, as well as the details of the dispute. If the court deems it appropriate to do so, it will accept the motion and inquire about the willingness of the involved parties to engage in mediation. Upon the agreement of all parties, the court will summon the parties, with or without their lawyers, and appoint a Mediator in accordance with Section 20 bis of the Civil Procedure Code, and the mediation process will ensue.
Once the parties reach an agreement or compromise, they will submit the proposed agreement to the court for examination, and upon the court’s approval, enter into a written agreement. On the day the agreement is concluded, any party may submit a motion for the court to adjudge the terms of the agreement under Section 138 of the Civil Procedure Code, provided that they demonstrate the necessity of doing so. However, it is up to the discretion of the court whether to accept or reject the motion.
Court judgements rendered under the Act’s provisions are final and binding unless, as under Section 138, there is the allegation of fraud on the part of any party, or the judgement is alleged to violate the law or the terms of the agreement.
Importantly, there are no court fees entailed by the mediation procedures outlined in the Act.
Failure of mediation
If the mediation is unsuccessful, and the prescription period has lapsed during the mediation proceedings, or it will lapse within 60 days from the date the mediation concluded, the prescription period will be extended for an additional 60 days from the date of the mediation’s conclusion.
The Royal Decree on Amendments to the Civil Procedure Code (No. 32) B.E 2563
September 8th, 2020
Section 1 This Royal Decree shall be called “The Royal Decree on Amendments to the Civil Procedure Code (No. 32) B.E 2563.”
Section 2 This Royal Decree shall come into force 60 days after the date of its announcement in the Government Gazette.
Section 3 To add the following to the Civil Procedure Code as Section 20 ter:
“Section 20 ter Prior to filing a case with the court, the prospective party may file a petition to a court that has jurisdiction of such case in order to request the court to appoint a “Mediator” to mediate matters between the two parties. Such petition shall include the names and addresses of the parties involved, including the details of the dispute. If the court deems it appropriate, the court will then accept the petition and proceed to inquire about the willingness of both parties to attend the mediation. If the counterparty agrees with the mediation, the court shall then have the power to summon all relevant parties to court, to which the parties may decide to come with or without a lawyer. The court shall proceed to appoint a “Mediator” to further the mediation process through the application of Section 20 bis. If parties are able to compromise or agree on certain terms, the parties shall propose such agreements, terms or conditions to the court. Once the court has considered the proposed agreement and decides that such agreement abides by the intent of both parties, is made with good faith, and is not contrary to the law, both parties shall then be made to sign a written agreement.
On the day of the settlement or the compromise agreement under paragraph one, the parties may request the court to adjudicate the terms of the agreement by presenting the reasons for necessity. If the court deems that it is necessary and appropriate to make a judgement at that moment, the court shall make an adjudication in accordance with the said agreement or compromise agreement by applying the provisions of Section 138 mutatis mutandis.
There are no court fees for the request and implementation of this section.
The court orders issued under the provisions of this section is final.
Where the court orders the appointment of a “Mediator” but such mediation is unsuccessful, if it appears that the prescription period after submission of the case has already expired, or will expire within 60 days after the date of the mediation’s conclusion, the prescription period shall be extended to 60 days after the mediation’s conclusion.”
Notes The reason for the promulgation of this Act is to promote mediation as an alternative for civil disputes prior to a lawsuit. Both parties can request the court to appoint a mediator and if they agree, the Parties may request the court to make an immediate judgement so that the civil dispute can be settled without the need for prosecution. This also helps save time and resources, which would be wasted in prosecuting cases, that will benefit the economy and society; therefore, it is necessary to promulgate this Act.