New Confidentiality Requirements for Disclosures Made in Mediation

The President of the Supreme Court issued regulations that became effective 8 October concerning mediation in court proceedings.  Of particular importance, article 37 of these regulations provides that, unless the parties agree otherwise, information disclosed during court supervised mediations shall be kept confidential.   Such information would include, among other things, settlement offers and concessions and assessments by the parties on the strengths and weaknesses of their defenses and claims and the defenses and claims of their adversaries.  Article 38 of these regulations provides that no one shall make reference to or use such confidential information in any ensuing arbitration or court proceedings.

Prior to promulgation of these regulations, there was no direct prohibition in Thailand on the use of settlement proposals or factual concessions made in mediation hearings at an ensuing trial and arbitration.   The general practice in Thailand – unlike many other jurisdictions – was that settlement offers, concessions and settlement discussions could be disclosed at trial or in an arbitration.

Although Thai courts have, in practice, rejected requests by parties to require witnesses to testify about (or requests for documents related to) an unsuccessful mediation, the parties could still try to testify or produce evidence in connection with an unsuccessful mediation. Article 38 of the newly issued regulations clearly states that such information cannot be used and article 39 provides legal basis for the court to reject such requests.  

Even with the promulgation of these new regulations, however, care should be exercised.  The regulations specifically apply only to mediation hearings, and do not expressly refer to out of court settlement negotiations.  Further, it is not yet known how these regulations will be enforced in practice.