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ALTERNATIVE DISPUTE RESOLUTION

(Philippine Mediation Center Observation Report)

Introduction

Alternative Dispute Resolution is defined as any process or procedure

used to resolve a dispute or controversy, other than by adjudication of a

presiding judge of a court or an officer of a government agency, in which a

neutral third party participates to assist in the resolution of issues. 1It

includes arbitration, mediation or conciliation, mini-trial, early neutral

evaluation, or any combination thereof.

Though some form of alternative dispute resolution, such as mediation

and arbitration are the predominant form of dispute settlement, the legal

traditional system is still considered, by most, to be the preferred and

predominant method. However, due to the potential time and expense of

litigation, mediation as a dispute resolution mechanism has become a firmly

established alternative to litigation in the business and legal communities.

Mediation is rooted in our historical experience, in the time when

disputing parties would bring their conflict to the village elder for

settlement. As a system, mediation can be found in many indigenous

cultures.2

The commonly used ADR methods are arbitration, mediation and

conciliation. These three are primarily resorted to by parties as an expedient

and cost-effective ways of settling disputes3.

Sessions are strictly private and confidential. This is to encourage the

needed openness and spontaneity for effective communication in mediation.

The mediator cannot record the proceedings in any manner other than taking

down a few personal notes for guidance. Even the trial court is not furnished

these notes. Any information from a mediation session is in fact

inadmissible in court. Mediators cannot be subpoenaed to reveal what

happened during these sessions either. All documents submitted by the

parties will be returned to them after mediation.

1 Vidal, Myrna. 2005. Effective Tool in Settlement of Business Disputes. http://ca.judiciary.gov.ph/index.php?action=mnuactual_contents&ap=dispute&p=y 2 2007. Philippine Mediation Center (Alternative Dispute Resolution) . http://pmc.judiciary.gov.ph/faq-the-case-for-mediation.htm 3 Cordia, Marthe. 2006. AlTERNATIVE DISPUTE RESOlUTION IN THE PHIlIPPINES: Wave of the Future or the Road less Traveled? UST LAW REVIEW, Vol. LI

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Evaluation of ADR Process

A. Parties

The parties was at first seemingly confused and unsure on the events

that would take place during the mediation. However, when it began and

thereafter the mediator explained the process of mediation, the parties were

not difficult to handle. They were at first reluctant in talking however, they

later on shared their own version or side of the story regarding the case.

They took turns in talking and no violent physical acts and commotion that

happened.

The parties arrived without their respective lawyers. The absence of

lawyers encourage to parties to settle to an agreement that is beneficial to

both of them and that would render the end to the conflict. Sometimes the

presence of a lawyer would encourage the parties to pursue the case rater

than to settle to an agreement amicable to all.

The mediation process which we observed was successful where the

parties entered into a compromise agreement. It only took about an hour for

the parties to discuss the conflict. Thereafter, parties submit mutual

satisfaction and concluded upon agreement for the withdrawal of claims or

counterclaims.

B. Mediator

Society perceives conflict as something that one should resolve as

quickly as possible. Mediators see conflict as a fact of life that when

properly managed can benefit the parties. The benefits of conflict include the

opportunity to renew relationships and make positive changes for the future.

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.

However, in order for mediation to be successful, it is important for

the mediator to understand how parties communicate.

The impartial mediator has no decision-making authority; his or her

goal is to facilitate communication between individual parties so that they

can settle the dispute themselves. Participation in mediation does not

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constitute an admission of any violation of the law and it can often resolve

the dispute more quickly and inexpensively than investigation or litigation.4

The mediator was calm and spoke with a soft voice facilitating and

encouraging openness, honesty, & direct communication or creating a

problem solving environment and exchange.

Few of the proper code of conduct observed during the mediation,

includes: informing participants as to the process of mediation, adopting a

neutral stance, revealing any potential conflicts of interest, maintaining

confidentiality within the bounds of the law, mindfulness of the

psychological and physical wellbeing of all participants, directing

participants to appropriate sources for legal advice.

He thoroughly explained the concept of mediation, the method, and

the rules that bind such process. In addition, he also enumerated the

comparative advantage of ADR or mediation over the adversarial method

such.

He called the attention of the parties to the concepts that undergoing

the process of mediation will be cost-efficient for both parties, contribute to

the speedy resolution of the case, address underlying case of dispute to

prevent recurrence, promote reconciliation, and the advantage that the end is

a win-win result crafted by the parties themselves.

There were times at the beginning of the assembly where the parties

seem to refuse to admit who is at fault in the case. However, the mediator

remained calm and patient in making the parties understand the cause of the

conflict and how they could possibly resolve it in a manner that would entail

an end beneficial to both parties.

Personal Observation and Recommendation

Upon entering the Mediation Center, one would notice a large room

with eight tables parallel by the walls with three chairs arranged beside each.

During the mediation, this set up of the room, as I observed, was basically

disadvantageous to the parties since they were not the only people who were

undergoing the process.

There were several mediators and each of them is conducting the

procedure simultaneously. It caused a bothersome amount of noise which

made it difficult for the parties to hear and understand each other. In line

4 Assessing the Effectiveness of New York State Mediation Programs for People with Disabilities: Recommendations for Improvements. 2011. http://www.nymakesworkpay.org/docs/Mediation.pdf

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with this, divisions or separate rooms for each assembly of mediation

process is recommended to afford the parties privacy and confidence that the

matters of the case are kept within them.

The room, though a large space, was supplied with air condition. It

created a comfortable space where parties can wait; mediate without

suffering the summer heat. A comfortable atmosphere is important so as not

to infuriate or irritate the parties which may later on contribute to the failure

of the mediation process.

In summation, the mediation process in the Mediation Center was all

in all or generally systematic and organized. The mediators conducted the

method in an appropriate manner and in the right conduct of the procedure.

They also observed the rules and regulations in this mode of resolving a

conflict.

Conclusion

ADR or Alternative Dispute Resolution is an important tool in the

disposition of cases in the country. It can provide breathing space for the

clogged dockets of the courts. Surveys conducted after mediation sessions

reveal a high level of satisfaction among disputing parties and cases referred

for court-annexed mediation had reached settlement. It can forgo the need of

undergoing expensive litigations because unlike rigorous court proceedings,

mediation is quick and devoid of legal intricacies. Many cases reached

settlement in 1-2 sessions. For example, the case at bar, settled to an

agreement after one session. In line with this, the enormous time and effort

expended in litigation are avoided. And lastly, it restores relationships long

torn by conflict.

Advantageous and helpful as it may be in almost all aspects in the

speedy resolution of a case, mediation remains to be a voluntarily process

where parties need to have to mutually consent in resolving their matter.

The alternative option of the process of mediation is undeniably an

unfamiliar ground and concept to most Filipinos nowadays. However, the

citizens must be educated on the advantages and details of this method

especially the positive aspects of mediation, namely: that it helps to identify

the true issues of the dispute; that it resolves some or all of the issues; that

agreement can be reached on all or part of the issues of the dispute; that the

needs and interests of the parties are met (in part or in full); that the parties

reach an understanding of the true cause of the dispute; that the parties reach

an understanding of each other’s needs and interests; that it provides the

possibility of preserving the relationship; and that an improved relationship

may result.

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Mediation process in the Philippines has a potential in resolving more

cases prior to judicial remedy. However, it is important to understand that

most people are not knowledgeable about this fact. Most think about

mediation in a negative sense such as losing a case because you just settled

for something small and easy. Rather, it must be in a positive sense such as

winning a case with the buzz and fuss because you settled for something

small and easy.