Mediation Act

Mediation means steps that give the parties a chance to negotiate a peaceful settlement of civil and criminal disputes without an adjudicated decision; it does not include mediation conducted in court proceedings or at the enforcement stage. A mediator is a person who is registered and appointed to mediate. A settlement agreement is an agreement the parties intend to be legally binding to settle the dispute or claims. The registrar is the head of the state agency that conducts mediation.

The Act does not affect mediation that state agencies already carry out under their own powers, though they may choose to mediate under this Act. Under Section 5, an agency that wishes to mediate under the Act must notify the Ministry of Justice.

If mediation ends without result and the limitation period expired during the mediation, or will expire within sixty days after it ends, the period is extended by sixty days from the end of the mediation. The same applies, by analogy, where the court refuses to enforce a settlement agreement under Section 33, counting the sixty days from the date the court's order becomes final. This section is about limitation periods, not the scope of mediation (scope is in Sections 20, 35 and 41).

A person who wishes to be registered as a mediator applies to the registrar, who may also recruit suitable persons with their consent (Section 9). A registered mediator must have completed a mediation course approved by the National Justice Administration Development Committee and have experience useful to mediation. A person is barred if previously imprisoned by final judgment (except for negligent or petty offences), legally incapacitated or of unsound mind, or previously struck off as a mediator under this Act and not yet five years past the date of the new application (Section 10).

A mediator sets the approach and arranges the mediation, assists and suggests ways to end the dispute, mediates neutrally and prepares the settlement agreement. A mediator acting in good faith is protected from civil and criminal liability. Under Section 12 a mediator must, among other duties, keep mediation matters confidential and must not act as a decider or force a party to sign.

Civil mediation under the Act cannot be used for disputes about personal status, family rights or ownership of immovable property. It can be used for land disputes that are not about ownership, disputes between heirs over the estate, other disputes set by Royal Decree, and any other dispute with a claim value not exceeding THB 5,000,000 or the amount set by Royal Decree. The THB 5,000,000 figure is the Act's own, and the Royal Decree amount, if any, is not covered here.

A party who wants mediation files a request with the state agency that conducts mediation. The agency asks the other party whether it is willing to take part; if the other party is unwilling, the agency strikes the request off and tells the requester. Where there are more than two parties and one is unwilling, mediation can go ahead between the willing parties.

Facts arising from the mediation, namely a party's wish or willingness to take part, opinions and suggestions on how to mediate, admissions and statements made by the parties, any proposals by the mediator, facts showing a party's willingness to accept a mediation proposal, and documents made specifically for the mediation, may not be received as evidence in litigation, arbitration or other proceedings, except to enforce the settlement agreement. Evidence or facts that already exist and can be proved in those proceedings are not barred just because a party used them in the mediation.

When the parties agree, the mediator records the agreement in writing, signed by the parties and the mediator. The record must at least state the parties' names and addresses, the legal dispute, that participation was voluntary, and the substance of the agreement, such as compensation, conditions to perform or refrain from, time limits, or a waiver of compensation. This section is the written record; applying to court to enforce it is in Sections 32 and 33.

If a party demands performance of the settlement agreement and the other party does not comply, the demanding party may apply to the court for enforcement. The application must be made within three years of the date the agreement became enforceable; if not, the debt under the agreement is extinguished. It is filed with the court of justice where the agreement was made, where either party is domiciled, or that has jurisdiction over the mediated dispute, and the court fee is at the rate for applying to enforce a domestic arbitral award.

The court orders enforcement of the settlement agreement unless the court sees, or the party resisting proves, that a party lacked capacity; the cause of the dispute or the agreement is plainly prohibited by law, impossible, or contrary to public order or good morals; the agreement arose from fraud, coercion, threats or any other improper conduct; or a defect in appointing the mediator under Section 24 materially affected the written agreement. An appeal is allowed only where the court refuses enforcement, the order departs from the agreement, or enforcement was ordered in breach of the section; the appellate court's decision is final. The Act speaks of an enforcement order, not of the agreement becoming a judgment.

Criminal mediation is available for compoundable offences and for the petty offences in Criminal Code Sections 390, 391, 392, 393, 394, 395 and 397, plus other petty offences not affecting the public that a Royal Decree sets. When the parties make a settlement, the right to prosecute is treated as extinguished only as against the parties to the settlement. Where the settlement has a related civil claim, Section 37 extinguishes the right to prosecute only once the parties have performed the civil part; if a party does not perform, the other may apply to enforce under Section 32. So where a related civil claim exists, finality depends on the civil terms being performed.

At the investigation stage mediation is available for compoundable offences, the same petty offences as in Section 35, and offences in the schedule to the Act with maximum imprisonment not exceeding three years (the schedule lists six Criminal Code offences: Sections 294 paragraph 1, 295, 296, 299 paragraph 1, 300 and 334). For the scheduled offences, Section 42 requires that the suspect has not been through criminal mediation under the Act before (subject to exceptions for negligent offences and petty offences, one of which depends on more than three years having passed since the earlier case was closed), and is not serving a final prison sentence or was released more than five years ago (subject to exceptions for negligent offences, petty offences and offences committed under age eighteen).

The investigating officer sets the first mediation session within seven days of appointing the mediator, and may seek up to seven more days where necessary (Section 50). Mediation must be completed within thirty days of the first session; where necessary, or where there is reason to believe the parties can settle, the mediator may continue for up to thirty more days with the reason recorded (Section 55). The mediator reports an ended mediation to the investigating officer within seven days (Section 61).

Community mediation centres, supervised by the Rights and Liberties Protection Department, may mediate, subject to the Section 20 exclusions: civil disputes with a claim value not exceeding THB 500,000 or the amount set by Royal Decree, other civil disputes set by Royal Decree, and criminal disputes under Section 35. Where the Department considers a mediation was conducted under the Act and issues a certificate, the settlement agreement is enforceable, or the right to prosecute is extinguished, as the Act provides. The THB 500,000 figure is the Act's own, and the Royal Decree amount, if any, is not covered here.