Alternative Dispute Resolution (ADR) Enforcement

Alternative Dispute Resolution (ADR) Enforcement

Alternative Dispute Resolution (ADR) encompasses methods designed to settle disputes outside the traditional judicial system, meaning disputes can be resolved without resorting to court proceedings in Thailand. Mediation and arbitration represent the most prevalent forms of ADR, with conciliation also serving as a notable method of dispute resolution within the country. Thailand is among the nations that actively implement ADR as a recognized means of resolving disputes.

Alternative Dispute Resolution (ADR) spans a variety of mechanisms, including informal mediation processes, informal tribunals, formal tribunals, and formal mediation proceedings. The traditional forms of ADR involve arbitration, which may be either binding or non-binding. Private judges, who may preside over these processes, offer another avenue for resolving disputes outside the conventional court system, tailored to the legal framework of Thailand.

Alternative Dispute Resolution continues to play an increasingly important role in Thailand. It just might offer a faster and more predictable resolution than the local state courts. There is special legislation regarding alternative dispute resolution in Thailand, e.g., the Arbitration Act B.E.2530 (1987), Arbitration Rules of Arbitration Institute, Ministry of Justice Conciliation Rules of Arbitration Institute, Court of Justice Regulations Pertaining to Mediation of Financial Dispute of B.E. 2544 (2001), Court of Justice Regulations Pertaining to Mediation of B.E. 2544 (2001).

Generally speaking, Alternative Dispute Resolution is very attractive for a couple of reasons:

  • It is often faster than trying to obtain a final judgment in court.
  • The outcome of a lawsuit is often unpredictable, while ADR allows the parties to choose the person/institution of the mediator or arbitrator who brings more sector-specific expertise and thus increases predictability.
  • ADR allows keeping the dispute and its resolution confidential.
  • The parties can choose the rules of procedure according to their needs.

Mediation in Thailand

Mediation, roughly speaking, is a way to resolve disputes between disputing parties by negotiation and coming to a mutual agreement. Mediation can be attempted in almost all cases.

In the Alternative Dispute Resolution Office, the Thai Mediation Center is responsible for conducting and coordinating both court-annexed and out-of-court mediation and offering the public legal advice on conciliation and mediation. The Alternative Dispute Resolution Office further develops the methods, systems, and standards for mediation. According to the Thai Mediation Center, Thailand's mediation system is designed to ensure satisfactory settlements where no parties are ultimately deemed winners or losers. Mediation results in harmony as people proactively participate in the process of dispute settlement. Mediation also saves the court system a lot of time and money by reducing its workload.

In an out-of-court mediation, the disputing parties agree on a neutral mediator that will settle the dispute. The involved parties can either designate an agreed-upon mediator or make use of a mediator from the services of the Thai Mediation Center. When parties agree on an acceptable solution during the mediation, they can decide between entering into an enforceable, binding compromise agreement or withdrawing the dispute case from the court.

Parties can still choose to enter mediation even if a dispute made it to trial. Then, the mediation would occur without the involvement of the court, which would classify the case as an out-of-court mediation without being bound to the rule of the Civil Procedure Code. Mediation cases are always confidential, and both the parties and the mediator are prohibited from divulging any information about the case, nor evidence or facts presented in court unless the parties have an agreement allowing them to do so. Mediation can only be discontinued if one of the parties withdraws, if a mediator fails to meet the deadline, if the mediator concludes that the mediation proceedings won't resolve the dispute, or if the parties request court judgment.

Many local and international disputes can be settled by means of out-of-court mediation, including commercial and civil disputes that involve financial issues, transportation, construction, compoundable criminal disputes, and international trade. Any mediation that proceeds at the Thai Mediation Center adheres to the rules of the Judiciary Out-of-Court Mediation. A standard out-of-court mediation occurs as follows:

  • A party sends a Request for mediation to the ADRO. Then, the ADRO provides the other party with a copy of the request, who then has 15 days to either accept or decline the mediation. The mediation request will automatically be declined if the other party does not respond within 15 days.
  • If the responding party agrees to participate in the mediation, the ADRO schedules a meeting between the two parties to designate a mediator and start with the process. The parties can agree on a mediator from the Mediation Center's approved list of mediators. The ADRO can designate a new mediator if there is a conflict of interest between the parties.
  • The parties then decide on the language that will be used for the proceedings and sign an acknowledgment of the process. The mediator can choose a language to be used if the parties cannot agree.
  • The mediator conducts the mediation proceedings according to the terms and conditions agreed upon by the participating parties. If, however, there are no agreed-upon conditions, the mediator handles the mediation according to the TMR Rules. The parties must have transparent cooperation with the mediator and conduct any document requests and evidence in good faith. The mediator must proceed adhering to the following principles: neutral evaluation, impartiality, fairness, and independence combined with the parties' wishes. The mediator may not impose a settlement. The following describes four phases of a standard TMC mediation:
  • The mediator must examine and evaluate the dispute through case files and may request any information from the disputing parties.
  • The mediator then makes an opening statement that consists of an introduction of the parties and the mediator, a layout of the various roles in the case, and the ground rules of the dispute.
  • After careful consideration of all the provided information, the mediator determines the areas of dispute and both parties interests.
  • Then, the mediator works to lessen the number and effect of the business disputes and offer the parties possible solutions. 

Mediation serves as a less formal alternative to traditional litigation. The mediators are adequately trained to conduct negotiations and bring the parties to a common ground where an agreement or settlement can be reached. Mediation is not a binding agreement, but it is rather used in a wide range of cases, such as federal government negotiations with various nationalities. Mediation is also commonly used in resolving disputes between stock brokers and investors.

Arbitration in Thailand

In arbitration, a dispute will be decided by an arbitrator or arbitral body agreed upon by the parties. The costs for an arbitration agreement consisting of an arbitration clause might be considerable, but arbitration can still be highly advisable, at least for corporate parties.

In Thailand, out-of-court arbitration is regulated by the Arbitration Act. The Arbitration Act has been redrafted to include a more comprehensive scope of issues and is based on the UNCITRAL Model Law on International Commercial Arbitration. The Act consists of key principles in conjunction with Thai-specific additions. The Arbitration Act dictates that an arbitration agreement can be found in a contract or a separately drafted agreement.

The parties decide on the number of arbitrators, but the total number of arbitrators is required to be an odd number. Furthermore, the parties decide on the venue where the arbitration process would occur and the language that will be spoken. A court system that will be competent to handle arbitration may be a court that has jurisdiction over the domiciles of the disputing parties, jurisdiction over the venue of the arbitration, jurisdiction to settle an arbitral dispute, or the International Trade Court and Central Intellectual Property.

The timeframe of settling disputes by means of arbitration is not confined to regulations, and the arbitrator and disputing parties determine the scheduling of when various phases of the arbitration occur. Out-of-court arbitrations generally take one year on average before conflict resolution is achieved. The fee payable by the arbitrator for a dispute settlement involving less than THB 2 million is THB 30,000. Any amount higher than THB 2 million involves percentages and fixed prices based on the disputed amount. Arbitration proceedings and an arbitral award are entirely confidential and may not be declared publicly.

Resolving disputes through arbitration can occur in two forms: ad hoc arbitration and institutional arbitration. The primary difference between these two forms is the manner in which the proceedings are managed. When parties agree to proceed with an ad hoc arbitration, the dispute will be managed entirely by the disputing parties and the arbitrator of their choosing. There will then be no involvement of an arbitral institution. The primary benefit of this form of arbitration is the lowered costs. The disputing parties have the freedom to negotiate with the designated arbitrator regarding the fees involved, and the fees generally associated with distributing documents or scheduled hearings are absent. Moreover, the management flexibility associated with an ad hov arbitration agreement is highly beneficial to both parties.

Conversely, the disputing parties who participate in an institutional arbitration are required to adhere to all the regulations and processes of the arbitral institution, which inevitably increases the costs and extends the period of the overall proceedings.

Ad hoc arbitration being the less formal option, the disputing parties have more control and influence in the organization and proceedings of the arbitration. Proceeding in this manner saves time and offers more opportunities in order to achieve a judicial settlement because the parties may be more willing to participate in negotiation when institutional regulations and rules don't bind them.

However, one flaw of ad hoc arbitration involves the potential that one party may abuse their control and refuse participation in the process, resulting in a failed arbitration. An institutional arbitration does not allow this to happen as all proceedings are supervised.

In Thailand, the primary out-of-court arbitration service is the Thai Arbitration Institute in the Alternative Dispute Resolution Office, which handles both international and local disputes.

Any arbitration proceedings at the Thai Arbitration Institute adhere to the Arbitration Rules, where a standard arbitration would proceed as follows:

  • The initiating party of the Arbitration will submit a claim to the Thai Arbitration Institute against the responding party. The respondent then has fifteen days to file a counterclaim and a defense. After receiving the counterclaim and defense, the claimant must file a defense against the counterclaim within fifteen days.
  • The disputing parties agree on a venue and the chosen language and rules for the proceedings.
  • Before the resolution process advances, the parties will be encouraged to settle on an agreement, and if the parties agree, a conciliator will be designated.
  • The disputing parties may have a one or a three-arbitrator tribunal unless they agree otherwise. If there is to be a single arbitrator and the parties don't agree on who the arbitrator should be, a list of three potential arbitrators will be given to both parties. The parties will have a period of fifteen days to remove the names of the potential arbitrators they do not prefer and ad the names of those they prefer. The Thai arbitration institute is then responsible for appointing the most favorable arbitrator. If the parties decide to have three arbitrators, each party is to decide on one arbitrator they prefer, and the two chosen arbitrators then decide on the third arbitrator. This decision may be challenged by the parties within fifteen days after being informed of the composition of the tribunal. The arbitral award will be based on the majority if a tribunal is composed of three or more arbitrators.
  • The Thai arbitration institute schedules a meeting with the disputing parties to establish the schedule of the proceedings, decide on evidence and procedure matters, and officially designate the tribunal. If the parties are treated with equality and provided with a fair opportunity to present their cases, the tribunal is ultimately responsible for the proceedings of tan arbitration.
  • The disputing parties submit their defenses and claims on the first day of the hearing. Both parties are required to offer proof of their claims or defenses. The tribunal is at liberty to evaluate the evidence and professionals to examine the evidence. Both parties are allowed to question expert witnesses. If there is no more evidence left to present, the hearing is closed. All arbitration hearings proceed in privacy.
  • The rules of the TAI dictate that an arbitral award has to be made within 180 days after the last appointment. That said, parties often decide to waive this time restriction. An award may not exceed, and relief may not be sought on the scope of the arbitration agreement, except for expenses incurred in the proceedings and the fees of the arbitrator.
  • Once the TAI presents the parties with a copy of the award, the parties have 30 days to request a reinterpretation of the award content by the arbitrators or the addition of an award that is included in the award but based on claims presented in the process. If a party wants to opt for an alternative to the arbitral award, they are required to petition their request with the competent court within 90 days after receiving the award. Appeals to enforce an arbitral award go directly to the Administration Court and the Supreme Court and must be executed within three years after the award becomes enforceable.

Currently, a significant number of disputes have been resolved successfully in Thailand by means of arbitration and will continue to do so. The viability of an arbitration clause in a contract is ensured by the Arbitration Act and therefore makes arbitration an extremely effective manner of alternative dispute resolution in Thailand.

Conciliation in Thailand

Another method of alternative dispute resolution is conciliation. The process of conciliation is similar to mediation. However, in mediation, the mediator is a neutral third party, while in conciliation, the conciliator is an active party. The main point of conciliation is to make both parties realize what they want to achieve and how they would like to conclude the dispute in a fair and timely manner. Section 22 of the Thai Labor Protection Law outlines and states the procedure of conciliation.


Some lawyers at Juslaws & Consult are experts in arbitration, while others excel as skilled mediators. We are convinced that Alternative Dispute Resolution will gain even greater prominence as an alternative to state courts in Thailand in the future. Our team possesses extensive expertise in crafting contract clauses related to Alternative Dispute Resolution, enabling us to guide you in determining whether ADR is the most suitable dispute resolution mechanism for your specific case. For further information, please do not hesitate to contact Juslaws & Consult.