Thursday, June 23, 2016

Evidence of Negotiated Settlement in a Private Setting: Custom & Practice - Thailand

John P. Formichella

Negotiating a settlement to a dispute in a private setting  is a challenge. Many obstacles to overcome in these types of situations including, but not limited to, each side may not understand all the relevant issues, know exactly what they respectively want, and respective mindsets may be blurred by emotions such as pride, passion, or perceived loss of face. Overall, there are trust issues lurking in the background, and there is no third party refereeing the process. Going through the often difficult process of negotiating a settlement in a private setting and then finding all of that hard work is wasted for lack of an evidentiary record that may be necessary for court purposes could be devastating. Although there is no strict formula or process to recording a settlement in a private setting, the following is worth consideration:

“Without Prejudice”
Not a recognized concept in Thailand
Judges are not obligated to follow this concept and may accept written evidence at their discretion
Private negotiation arrangements
Dependent on the parties agreement as to agenda or format
Nothing spoken may be used by the parties as evidence in court; an admission or oral agreement is not admissible. The standard practice in Thailand is for meeting minutes to be written and then signed by each side (the authorized signatory of each party in the case of corporates). Such meeting minutes, if signed by each party, are admissible as evidence for the courts.
Informal negotiation with unsigned written meeting minutes
Dependent on the parties agreement as to agenda or format
meeting minutes unsigned will not have evidentiary value in court.
Informal negotiation with signed written meeting minutes
Dependent on the parties agreement as to agenda or format
Meeting minutes signed by authorized representatives may be used as evidence in court (as per above).
Court mandated mediation
At the Courthouse normally with a retired judge
No oral expressions may be used against either party. The sessions will not be recorded.  If an agreement is reached in a mediation session, a written agreement will be prepared and reviewed by the mediator, which will be sent to court for review. After court review, the court will endorse the agreement. The agreement will be enforceable in the event of a breach of the settlement.

The above should is not intended to be legal advice and should not be relied upon as legal advice accordingly.

© John P. Formichella, 2016 All Rights Reserved