Mediation In Cambodia

• Published date: 03 February 2023
• Subject Matter: Insurance, Litigation, Mediation & Arbitration, Insurance Laws and Products, Arbitration & Dispute Resolution
• Law Firm: Rajah & Tann
• Author: Heng Chhay and Prom Savada

Introduction

Mediation is "a voluntary process in which a trained and impartial third person, the mediator, helps the parties in a dispute to reach an amicable settlement that is responsive to their needs and acceptable to all sides". It has been one of the traditional dispute resolution mechanisms that has evolved as part of the Cambodian culture and legal system. Although the use of mediation is permitted and is provided for under various laws, there are no uniform procedures of mediation and the procedures employed may vary depending on the type of dispute and the individual mediator's locality and method of personal preference.

This article examines the mediation process under Cambodia's legal framework and the development of mediation in Cambodia.

Mediation under Cambodia's Current Legal Framework

While there are currently no specific regulations and regulated procedures on mediation under Cambodia's legal framework, relevant provisions can be found under various regulations including the Code of Civil Procedures, Labour Law, Land Law and related regulations, Investment law, Law on Management and Administration of Commune and Sangkat Council, Law on Insurance 2014 ("Law on Insurance"), etc.

Mediation is in principle distinguished from conciliation by the role of a third party in assisting the parties to seek a settlement - in mediation, a mediator is a third party assisting the disputants to arrive at an agreement while in conciliation, a conciliator is normally an expert appointed to settle a dispute by giving parties suggestions as to how they may resolve their disputes and persuading parties to reach an agreement. Mediation tends to be led by the disputants while conciliation is led more by the third party.

However, the terms "mediation" and "conciliation" seem to have been used interchangeably under Cambodia's current legal framework. The interchangeable use of these terms might not be unprecedented as the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation also uses the term "conciliation" to encompass all such procedures, including mediation. Mediation and conciliation share a common characteristic, in that the role of the third party is limited to assisting the disputants to reach a settlement and does not include the power to impose any binding decision. Notwithstanding this, the ultimate explanation of why Cambodia uses the terms "mediation" and "conciliation"...