Prior to filing a lawsuit, a procedure known as ‘pre-litigation’ civil mediation may be undertaken by plaintiffs to settle a matter without pursuing formal litigation. Plaintiffs may opt to settle matters out of court given that it often saves time and resources that would otherwise be spent in litigation. In Thailand, this procedure is governed by the Civil Commercial Code which was recently amended on 8 September 2020 and took effect on 7 November 2020.

The Directive states that pre-litigation civil mediation is applicable to all civil disputes other than those prohibited by Section 9 of the Directive which include:

• Cases made in bad faith or with the intention of taking advantage of other parties;
• Cases that are already involved disputes handled by another civil court;
• Cases that were previously involved in unsuccessful mediation; and
• Cases that cannot be mediated.

It also states that before a complaint is filed, one of the parties in a dispute may petition the corresponding court to appoint a mediator to help resolve the dispute. If the petition is accepted by the court, the parties will be gathered together, with or without their legal representatives, and will appoint a mediator. If the dispute is settled successfully, the court will assess whether the agreement is legitimate and made in good faith prior to allowing the parties to sign the agreement. The court may also issue a judgement in accordance with the agreement if requested by the parties or if it is deemed necessary to do so. Prior to this coming into effect, it was customary for a judge at the beginning of a procedure to ask the parties if they would like to propose a settlement before beginning litigation, however this allows for a formal mediation process to take place before seeing a judge.

Once the judgement has been made, it will be considered final and can only be appealed on grounds of fraud or if the judgement goes against the agreement or provisions of any corresponding laws. Alternatively, if the parties fail to resolve the dispute, statutes of limitations imposed by the courts following the submission of the petition will be extended for 60 days following the end of the mediation. It is also worth noting that the existing provisions of the Civil Commercial Code regarding the duties of the mediator, which include general confidentiality and as well as specifically prohibiting the mediator from disclosing information in subsequent court proceedings (including under subpoena), apply under the Directive.

For more information about pre-litigation civil mediation, please contact us at [email protected] or use the contact form provided.