Mediation – calming the waves

Recently, I have been invited to speak at MCLE Seminars on Mediation as an Alternative Dispute Resolution (ADR) mode. In preparing my presentation, I sought to answer these questions: What is it? Does it hold any promise in the Philippines? Is there any empirical evidence or practical experience to show its success? What is being done to promote mediation? What more needs to be done?

Mediation is described in the brochures prepared by the Supreme Court through the Philippine Judicial Academy (Philja) and Philippine Mediation Center (PMC), as follows:

Mediation is a process of resolving disputes with the aid of a neutral person who helps parties identify issues and develop proposals to resolve their disputes. Unlike arbitration, the mediator is not empowered to decide disputes.

(Court-referred mediation) "is a process where the parties to a pending case are directed by the court to submit their dispute to a neutral third party (the Mediator), who works with them to reach a settlement of their controversy". The Mediator acts as a facilitator for the parties to arrive at a mutually acceptable arrangement, which will be the basis for the court to render a judgment based on a compromise.

In 2001, the Supreme Court, through the Philja and PMC, together with the Philippine Mediation Foundation, Inc., started an initiative to pilot test mediation in the court system. Among others, mediation rules were developed; mediators and mediation supervisors were trained; and PMC units were established. Three initial pilot courts were selected – Regional Trial Courts (RTC) and Metropolitan Trial Courts (MTC) of Metro Manila, Metro-Cebu and Metro-Davao. As part of the strategy, mediation was made part of the pre-trial process, i.e. if the parties indicated their willingness to settle and go through mediation at the pre-trial conference, the RTC/MTC judge referred the parties to the PMC unit in that court. The PMC unit was headed by a Supervisor who, among others, assisted the parties by explaining the mediation process and helping them in the selection of the mediator from among a list of accredited mediators. If the parties could agree on a mediator, the Supervisor appointed one. The appointment of the mediator was then confirmed by the RTC/MTC judge. The mediation process was to be completed within 30 days – extendible for another 30 days.

What was the success rate of the pilot project of court-referred mediation? Data gathered by the PMC showed the following success rate for cases referred to mediation, to wit: (1) Metro-Manila – 90 percent, (2) Metro-Cebu – 80 percent, (3) Metro-Davao – 65 percent, and National Average – 85 percent.

In many cases, settlement was reached in one or two sessions. The study further showed that there was a high level of satisfaction among the disputants and that close to 100 percent complied with the settlement agreements reached in mediation. More importantly, the study confirmed that mediation invariably restored relationships long torn by dispute considering that mediation addressed deep-rooted sources of the conflict.

Encouraged by the success of mediation at the RTC/MTC level, the next step was to try it at the Court of Appeals (CA) level. Understandably, there was some reluctance, if not resistance. With one party already a winner at the CA, it seemed reasonable to expect that the winner will likely hold tight to its favorable decision and will not be willing to re-open and whittle down its winning verdict by entering into mediation. Despite the initial reluctance and resistance, the Supreme Court, through Philja-PMC started a training program for CA mediators and developed a program and rules for the same. With the active participation of the entire CA, led by Presiding Justice Cancio Garcia, the CA tried mediation during a so-called "Settlement Month" in November 2002 for three judicial regions, i.e., National Capital Region, Region III and Region IV. Data gathered by the Philja-PMC at the CA levels shows the following success rate: of 162 cases identified, 57 were returned (no mediation) and 105 were mediated, 70 of these were amicably settled (66 percent) and 35 failed (33 percent). As can be seen, mediation, even at the appellate level, was proven to be successful in the hands of trained CA mediators.

What lies ahead? To be sure, a lot needs to be done to replicate on a nationwide basis the success of the pilot programs of the Supreme Court on mediation. However, in my opinion, I believe that the best way to start is through education; that the best place to start is in law schools, and that the best candidates for mediators are law students. I’ve said it before, if in medical schools the focus of medical training is surgery, most medical solutions will most likely be surgical. Looking at law schools, the current focus of lawyers’ training is litigation and almost nothing is taught on alternative dispute resolution (ADR) modes such as negotiation, mediation and arbitration. Thus now, the most popular legal solution is litigation. The training should not only be on substance and procedure, but also on practical exercises, in ADR. Like in moot court, there should be mock negotiations, mock mediations and mock arbitrations in law schools where the skills of would-be lawyers in resolving disputes are honed and programmed. Otherwise, we will not be able to stem the continuing waves of surgical and radical solutions offered by litigation which is drowning our court system.

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Atty. Victor P. Lazatin is a senior partner of Angara Abello Concepcion Regala & Cruz Law Offices. He may be contacted at telephone nos. 830-8000/ 892-1115 or e-mail at [email protected] or [email protected].