In July-August 2004, the consultants for this project (see below) traveled to Bangkok to conduct a one-day workshop on mediation for participants from ASEAN member countries and to participate on a panel presentation focused on the efficacy of Alternative Dispute Resolution (ADR) in resolving financial crises in ASEAN-member countries, which were to be conducted prior to and during the 2nd Annual ASEAN Law Forum which was held at the Shangri-La Hotel in Bangkok on July 26-28 (the “Forum”). In preparing for the program, the ABI worked closely with the judges and staff affiliated with the Alternative Dispute Resolution Office (ADRO) of the Office of the Judiciary of the Royal Thai Government . This report begins with a summary of the 2001-02 ABI/ADR training and infrastructure development program (the “ABI program”) that formed the foundation for the current project. The ABI program was funded and supported by the Kenan Institute of Asia’s BSOP program (KI Asia). The report next summarizes the ADR training and infrastructure development programs that were conducted by this ABI team and others in 2004 under the support of an ASEM II grant, which resulted in the training of approximately 400 additional mediators and the development of the ADRO’s “Mediator Manual,” which incorporated ethical and procedural rules and guidelines for mediators based on intellectual best practices. The report next summarizes the meetings of the ABI team members with the ADRO judges and staff prior to the Forum and the tangible evidence that demonstrates the efficacy of the past capacity-building projects described above. The report next summarizes the one-day workshop and panel presentation that were conducted during the Forum. The report concludes with a brief summary of the observations, conclusions and recommendations of the ABI team.
The 2001-2002 ABI Program
The team leader for this project, George M. Kelakos and his U.S. colleague, Jacob Aaron Esher, had previously participated in this ABI program, which consisted of a three-phase ADR capacity building project commencing in September 2001 and concluding in September 2002 for the ADRO1 . This project was conducted jointly with ADRO, ABI and KI Asia. Since the ABI program provided a foundation for the ASEAN programs covered by this report, the is summarized below:
On Sept. 1-12, 2001, an ABI team led by George M. Kelakos traveled to Bangkok, Thailand, to conduct Phase I of the three-phase technical assistance/mediation training ABI Program funded by KI Asia in furtherance of the AERA program in cooperation with the ADRO. Phase I consisted of two three-day mediation training courses given to approximately 90 participants, as well as two half-day programs for members of the Thai Judiciary and Official Receivers. The participants in the two three-day mediation training programs ranged from a retired Thai Supreme Court justice to ordinary businesspeople. While most of the participants had legal, financial or business backgrounds,2 some came from an academic background. The two half-day programs consisted of a roundtable discussion with members of the Thai judiciary on the beneficial uses of facilitative mediation for the resolution of NPL and financial disputes and a mediation demonstration for approximately 75 official receivers at the Legal Execution Department.
On Jan. 14-18, 2002, an ABI team, which also featured a senior staff attorney3 from the Federal Judicial Center (FJC), traveled to Bangkok to conduct Phase II of the program, which consisted of a "train the trainers" program. The Phase II three-day training program was given to a group of approximately 30 trainees culled from the participants of the two three-day mediation training programs in Phase I of the program. The Phase II program was also attended by members of the Thai judiciary, who observed most of the training and actively participated throughout the program by providing their input and insights during the lectures, demonstrations and breakout sessions. In addition, a representative from the Office of Inter-judicial Affairs of the FJC, who was visiting Thailand as part of a KI Asia-supported fact-finding mission relating to a Thai judicial reform assistance program, participated in the last day of the training program. While in Thailand, the ABI team also conducted a half-day program for approximately 50 bank officers, which consisted of a brief discussion of the essential principles of facilitative mediation and a mediation demonstration.
On September 21-27, 2002, a team from the ADRO traveled to San Francisco and Los Angeles to participate in Phase III of the program to observe court-annexed ADR programs in San Francisco and Los Angeles and how ADR cases are administered in the private sector (at JAMS, a private dispute-resolution organization with office located throughout the United States). The Thai participants consisted of three judges, including the chief judge attached to the ADRO and the director of the ADRO. While in San Francisco, the Thai delegation spent a day and a half in meetings with the program counsel and staff of the ADR program for the U.S. District Court for the Northern District of California. The three-day program in Los Angeles included round table meetings with Judges Barry Russell and Samuel L. Bufford at the U.S. Bankruptcy Court for the Central District of California, meetings and video conferences with senior representatives and staff of JAMS’ Los Angeles, New York and Boston offices, and a telephonic roundtable discussion with representatives of the FJC and JAMS.
The ASEM II Training Program
The ASEM II program, which was conducted in Thailand in 2004, incorporated two components: mediation training and the development of a guide for mediators, codes of conduct and standardized rules for conducting mediations all based on international best practices, but tailored to Thailand’s unique culture and society. The Component 1 team was charged with conducting basic mediation training in four locations around the country (Bangkok, Songkhla, Chiang Mai and Khon Kaen). Mr. Kelakos served as the Component 1 team’s leader while Mr. Esher was the lead mediation trainer for this program. Together with their Thai colleagues, Khun Thada Chumsaratul and Suriyan Hongvilai, they conducted basic mediation training programs that resulted in the training of approximately 400 newly-minted mediators (the trainees included accountants, bankers, business leaders, and community leaders and elders). During the training programs, the judges and staff of the ADRO conducted simultaneous ADR training programs for the judges and staff in the civil courts of a number of key regions in Thailand to further build ADR capacity in these regions.
The ASEM II program also included a Component 2 team that was charged with developing a guide for mediators, codes of conduct and standardized rules for conducting mediations in Thailand. This team was led by Mr. Robert Niemic and he was assisted by a colleague from the U.S. (Judge Erwin I. Katz-retired) as well as by two prominent Thai professionals, Som Indra-Prayong and Mr. Suchin Chaimangkalanon. These efforts resulted in the development of the Mediation Manual.
Summary of Pre-Forum Meeting with ADRO
On July 25, prior to the commencement of the Forum, the ABI team had the occasion to meet with the senior judges and staff of the ADRO to (i) discuss the proposed role-play exercise and the role that the ADRO would play in that exercise, and (ii) review developments at the ADRO and the current status of ADR development and usage in Thailand. During these discussions, the ABI team was advised of the following:
- The ADRO has been maintaining very detailed statistics of the civil cases that are referred to mediation throughout the country and whether these cases are resolved through mediation (either by a judge or lay mediator).
- The statistics are used in part by the Office of the Judiciary to determine which court/region is entitled to funding to support ADR; the better the statistics, the more funds are made available for that court/region.
- While each court/region appears to be using the Mediation Manual as a guide, each court/region is tailoring ADR programs to its own needs and requirements. Nevertheless, it appears that the “top-down” training approach of the ADRO around the Kingdom appears to be bearing fruit.
- The ADRO now has more than 3,000 trained mediators in its roster; this is further evidence of the efficacy of the past training programs and this provides further support for the conclusion that Thailand has successfully adopted ADR as an alternative to the court processes for resolving disputes.
- The statistics kept by the ADRO also demonstrate that ADR is working and taking hold in the Kingdom, and that the tools of ADR are being applied to ever-larger civil disputes.
One-Day Mediation Training Program
The original concept for the project was to have the ABI team conduct a one-day mediation program largely geared to an audience of 50 representatives from the following ASEAN member states: Vietnam, Laos PDR, Myanmar and Cambodia. Right before the training program commenced, it became evident that representatives from all of the additional ASEAN member states that planned to attend the Forum wished to participate as well. As a result, the program was conducted for a much larger audience than anticipated as representatives from Indonesia, Malaysia, Singapore, Brunei Darussalam and the Philippines also attended and participated in the program.
The ABI team, with the assistance of Khun Thada and a judge from the ADRO (Khun Thada and the judge assisted in the role-playing exercise), conducted an interactive program that attempted to mix lecture (based off the Power Point presentation) with practical demonstrations of the stages of a typical mediation case. The ABI team had developed a hypothetical involving an individual debtor and a bank, and used tools that the team had developed in earlier programs (such as mingling with the audience and using humor to create a “family” atmosphere in the training room), and the ABI team members would fall in and out of character (in the role play) to demonstrate key points and issues and to explain the reasons why certain approaches were taken by the mediators. In that regard, the ABI team members chose to act as co-mediators in the role play, in part to demonstrate that the use of co-mediators can be an effective ADR tool to resolve disputes out of the court system.
During the program, the ABI team pointed to the efforts undertaken by Thailand to build ADR capacity and, with the assistance of the ADRO, circulated copies of the Mediation Manual to all participants of the program.
Based on the questions posed during the program, coffee and luncheon breaks, and throughout the Forum, the ABI team came away with the impression that most of the delegates benefited from the program. In addition, it appears that there may be some interest by some of the delegations in having in-country training programs (most notably, Vietnam and Brunei Darussalam).
Two-Day Forum
While the ABI team was only slated to participate in a panel presentation during the last day of the program, the ABI team was present throughout the program and had the opportunity to mingle with most of the delegates, including the representatives from the ASEAN Secretariat. In addition, the ABI team members often asked questions and provided commentary during the other panel presentations, and from the ensuing discussions, it appeared that the participation of the U.S. ABI team members was well-received.
The panel presentations at the forum were both in-depth and insightful. Each of the countries represented at the Forum had its chance to explain the regimes that existed in that country and to comment on the efficacy of ADR as a dispute resolution tool. The ABI team members were honored to participate in the Forum and came away with more knowledge and a better appreciation of each country’s use of these tools.
Observations, Conclusions and Recommendations
ADR has deep cultural roots in the ASEAN countries. Perhaps the most telling comment came from one of the delegates who proclaimed that Asians should “reclaim” ADR, meaning that the roots of ADR are to be found in the East and not in the West. Each of the ASEAN Members, through their representatives, demonstrated that forms of ADR, to a varying degree, had roots in their culture and society and were utilized routinely to resolve disputes out of court (such as domestic disputes under Islamic law, for example). The ABI team supported these conclusions and added that perhaps it would be best for the ASEAN countries to exchange concepts and ideas among each of the members as well as the West, with a goal to refining the tools and promulgating their spread as a viable alternative to the court resolution of disputes.
The use and development of ADR tools varies country by country within the ASEAN member states. For example, countries like Thailand and Singapore have very sophisticated centralized ADR centers and have developed programs for stimulating the use of ADR tools to resolve disputes out of court as well as structures for ensuring that mediators are properly trained and that they follow uniform rules, codes and guidelines. Given that Thailand appears to have made made great strides in the last four years in building its ADR infrastructure, the ABI team recommends that any future training teams for programs conducted in other ASEAN member states include representatives and mediators of the ADRO. In addition, given the high level of sophistication evidenced by Singapore in this field, perhaps representatives from Singapore could be included in future training programs as well.
Thailand’s success with ADR can provide incentive to other ASEAN Member states to further promulgate its use as an alternative to the courts for the resolution of civil disputes. As is evident by the statistics and by the presentations made by the Thai representatives at the Forum, Thailand has successfully adopted and integrated ADR as an effective alternative to court dispute-resolution processes. The rapid use and development of a strong ADR infrastructure in less than four years in Thailand should demonstrate to those ASEAN member states that are just developing such an infrastructure that this task can be accomplished within a relatively short time frame. By adopting and promoting these processes as Asian processes (tapping into the heritage, for example, of turning to local community leaders or conciliators to resolve disputes) as opposed to Western-generated processes, it is likely that ADR will continue to take root in the ASEAN countries and serve as an effective tool for out-of-court dispute resolution.
We the ABI team, would like to express our gratitude to our friends at KI Asia and at the ADRO for including us in this project; we will now follow up with the representatives from each of the ASEAN member states to determine if there is any interest for further capacity building projects in this area.
1 This report was prepared by George M. Kelakos, ABI's Vice President International Affairs, with input from the other ABI team member on this project, Jacob Aaron Esher. The recommendations, assessments and views expressed by the ABI team members in this report are not necessarily those of their employers, partners or professional colleagues, or of ABI.
2 Khun Thada Chumsaratul, one of the consultants on the ASEM training project described below, was a trainee in the first group of mediators that were trained in Bangkok in September 2001 and also participated in the "train the trainers" advanced mediation training program in January 2002. In addition, Khun Tada graciously assisted the ABI team in the ASEAN one-day workshop by participating as a key actor in a role-playing exercise conducted as part of the workshop.
3 The FJC senior staff attorney was Robert Niemic, one of the consultants for and Team Leader of Component 2 of the ASEM II Program described below (the Component 2 team focused on the development of the Mediation Manual). Mr. Niemic also participated in the panel discussions with the representatives of the ADRO during Phase III of the ABI program.