ALTERNATIVE DISPUTE RESOLUTION
IN ASEAN: A CONTEMPORARY THAI PERSPECTIVE
ROOT CAUSES OF THE POPULARITY
When we look at the root causes that create the popularity of ADR in various countries around the world, they look quite similar. However, each cause has different degree of influence in different countries, depending on economic and societal background of a particular country. In Thailand, ADR has gained popularity because of several reasons.
1.1 ADR and the Courts
One of the reasons is to reduce the backlog in the courts. In the past decade, the number of cases litigated in courts has rapidly increased. The traditional approach to the backlog problem is to establish more courts and recruit more judges. Then, it is realized that the approach to the problem is not a sustainable one. In the long run, the fixed cost of judges’ salary and benefits will consume a large portion of the court budget, and there will be little budget left for development in other areas. It is decided that the longer term solution to the backlog problem is, therefore, a better case management and the use of ADR to prevent disputes coming to the court in the first place and to help disposing of cases as soon as possible once the disputes are litigated in courts.
1.2 ADR and Business
The phrase “Time is money” is still true in business community today as it has been throughout the history of business. The phrase applies with equal force in the context of dispute resolution, because the longer a dispute persists, the more damage it causes to both parties’ business interest. Moreover, a mechanism like mediation provides parties in dispute an authority to decide the outcome of the dispute, instead of placing such power into the hands of a third party, and virtually being impossible to dictate the outcome. Moreover, ADR provides a forum to deal with the disputes without much publicity that can damage business reputation and credibility of the parties. Mechanism like mediation also provides the parties a chance to preserve their business relationship by resolving their difference in an amicable manner. Mediation not only helps the parties to settle their existing disputes, but also open the door for them to discuss about future relationship and business cooperation. Such kind of opportunity may not be found in litigation where the disputes are settled by considering only past incidents and determining the rights and obligations under the existing legal relationship at the time of the disputes.
1.3 ADR and State Agencies
Although, traditionally, state agencies have never been quick in adopting new approaches to their existing tasks and responsibilities, it is quite astonishing to see how quickly and enthusiastically state agencies in Thailand welcomes the use of ADR. ADR, especially mediation, has been used in various state agencies in Thailand. One of the primary reasons is that, in modern public administration thinking, there should be an “involvement” or “participation” of the people in public works, especially those effecting their lives and well-being. Such “involvement” or “participation” may occur from the beginning of the works when state agencies conceive a project or an initiative through the implementation stage. Once there is any disagreement or conflict between state agencies and the people in any stage, state agencies should not impose their will and authority on the people. Instead, they should have the people, especially those particularly affected, involve in the resolution of the disagreements and conflicts. Mediation provides a forum to consider the interests of all parties concerned and to mutually find a way to blend those interests into a single mutually-accepted solution that can further those interests. For example, the Ministry of Public Health employ mediation to settle the disputes between healthcare providers, either medical doctors or nurses, and patients and thereby prevent the disputes from being litigated in court. Such litigation will not only incur additional costs and expenses, but also distract healthcare providers from their works, consume a lot of time that should be used for providing healthcare services to other patients and discourage healthcare providers.
1.4 ADR and Community
ADR like mediation has been used in Thai society for a long time. It has been traditional for those having disputes with their neighbors or other members in the community to ask the elders in their community to help the parties in amicably reconciling their differences. This tradition has still continued today. What has been changed in the past couple of years is the encouragement by various agencies and organizations to utilize mediation even more. This encouragement includes spreading the understanding of mediation throughout the community and helping natural leaders in communities to develop more skills of conflict resolution. The main objectives in this campaign includes preservation of peaceful and harmonious communities and reconciliation of any difference at the earliest stage of conflicts before such difference develops into any full-blown confrontation, either in court or in any violent manner.