Documente Academic
Documente Profesional
Documente Cultură
A Publication of the
Justice Reform Initiatives Support Project
A SOURCEBOOK ON ALTERNATIVES TO
FORMAL DISPUTE RESOLUTION MECHANISMS
ISBN - 978-971-91990-3-8
Court-Annexed Mediation: 24
Summing Up The Past And Charting The Future
Carolyn A. Mercado And Damcelle S. Torres
And so, at the end of the five-year duration of the JURIS project, its
proponents have decided to put together a compilation of articles that
mirror both the triumph of the practice of ADR not only in the courts,
but also in the general field of dispute resolution. The articles also
reflect ADR’s inherent limitations, its shortcomings and continuing
concerns. This sourcebook offers a review of the practice of ADR and
seeks to determine ways to improve this endeavor.
The first article deals with the Barangay Justice System, the country’s
very own system of village level conciliation through village
officials. The article was written by the Chairperson of the ADR
Department of the Philippine Judicial Academy (PHILJA), and a
venerable icon in the field of ADR, Prof. Alfredo Tadiar. Barangay
Justice is discussed not as a stand alone method of resolving disputes,
but is correctly situated in the panoply of various mechanisms
existing in the field of ADR that help decongest the courts and
achieve better justice. The article provides a good framework
discussion on matters like court annexed mediation, judicial dispute
resolution, appeals court mediation, construction arbitration and
international arbitration, as well as the details of barangay justice.
The second article deals with court annexed mediation, and was
written by a lawyer colleague and friend, Atty. Carol Mercado, Senior
Program Officer and Atty. Damcelle Torres, Program Officer, both of
the Asia Foundation. The Asia Foundation has been highly
instrumental in supporting the mediation program of the Supreme
Court, and has had a lot of experience, both in the Philippines and
abroad, on ADR. Although the authors are quick to add that the
article does not reflect the official position of the foundation, it is
clear that the article benefits heavily from their experience. The
article provides a frank appraisal of the successes of court annexed
mediation, as well as the challenges and problems it continues to face,
like the low referral rate by judges. The article ends with a range of
options in the field that are worth examining, like Online Dispute
Resolution (ODR).
The third article deals with a very contentious area which is the
lawyers’ perspective on ADR in the courts, and its impact on the
profession. The article makes a strong pitch for the increased
involvement of the bar in ADR, not only arguing from a normative
point of view (the canons of professional ethics, decisions of the
Supreme Court, circulars on lawyer’s role in mediation) but also from
the practical view of delivering satisfactory justice, and earning one’s
professional fees. The article draws heavily from policy
pronouncements of no less than various Chief Justices, as well as
other issuances of the Court on the matter. The article was written by
Atty. Imelda Gidor, a prominent practitioner in Bacolod City and also
a mediation trainer for the JURIS Project.
xiii
The fourth article tackles a very novel concept that has been
introduced by the JURIS Project, which is Judicial Dispute
Resolution (JDR). Essentially, this process involves the active
mediation and conciliation by judges of cases that have not been
settled during court annexed mediation. The core principle that
differentiates this process from other pre-trial processes is that the
JDR judge will not try the case, should mediation be unsuccessful, in
order to preserve the impartiality of the trial and the judgment
procedure. The article on JDR was written by Atty. Salvador Panga, a
well-known legal practitioner and advocate for ADR. His article was
culled from a technical study that he conducted on the efficacy,
efficiency and over-all satisfaction with JDR, using the experience of
Bacolod City, San Fernando Pampanga and Baguio City with this
practice.
The fifth article deals with a very appropriate topic, which mines the
wellsprings of our cultural roots, that is the interface of indigenous
dispute resolution mechanisms with the formal legal system.
Mainstream legal practice often blindsides this aspect of our tradition,
and the passage of the Indigenous Peoples’ Rights Act (IPRA) has
brought this important cultural and legal practice to the forefront. But
is the formal legal system designed to integrate indigenous values and
practices into the mainstream? Or even, is integration the proper
mode of interface at all? These are the questions which the author,
Atty. Roda Cisnero, attempts to answer. The article is part of a larger
research that the Indigenous Peoples’ Cluster of the Alternative Law
Groups has made on the matter, which will come out in monograph
form.
The final article of the series has been written by Atty. Eleanor
Conda, a former Executive Director of the Women’s Legal Bureau
and the Gender Adviser of the JURIS project. The article explores the
gender dimension of the ADR practice – how mediation has the
potential of both heightening the participation of women in the
process, or masking the power imbalances in favor of the men, in a
seemingly consensual but probably lopsided compromise agreement.
The article draws from the Gender Study of an ALG member,
WomenLEAD, and other studies commissioned under JURIS. The
author takes a fresh look at gender equality both from a human rights
perspective, as well as a practical approach on the justness and
fairness of mediation outcomes.
Even as early as the midterm of the project’s life, many of those who
were involved with, or knew about, the innovations of JURIS were
much concerned with ways to sustain the positive changes brought
about by JURIS, beyond the project’s life. In numerous meetings, the
question of sustainability was raised and discussed extensively, and
the agenda of finding ways to ensure the continuity of the JURIS
legacy increasingly became the hottest topic towards the end of the
project. The ending mantra of the project, it seemed, was “THINK
OF THE JURIS LEGACY.”
But how does one exactly ensure the continuity of something that is
still very new and is, in fact, experimental to a large extent?
Some even argued that the duration of the project was too short to
prove that the innovations were worth adopting into mainstream court
processes. Perhaps, this is true and sustainability does not necessarily
refer to immediately institutionalizing the innovations made. Rather,
it could simply refer to continuing the activities of the project in order
to accumulate more in-depth data and documentation of the results of
applying the innovations it has introduced. Whichever is desired or
expected, to institutionalize or simply to continue the innovations,
sustaining the legacy of JURIS was imperative. Things should not
stop just because the project ended.
With the termination of the project came the end of all financial and
organizational support from the donor institution. Without the
finances and the organization to run the activities, sooner or later, the
entire initiative will collapse. Thus, providing the finances to support
the activities of the project was immediately tackled, and this was
achieved through the establishment of a self-generating “mediation
fund” to replace the donor’s financial contributions. On the other
hand, a new organization was created to take over the management of
the project. After much debate, the structure of the new Philippine
Mediation Center took its final form.
xvi
After obtaining feedback from these sectors, it was found that judges
did not see themselves as playing an integral role in the mediation
initiative. When the case is referred, the court’s interest in the case
ceased as effective control was transferred to the mediation center
personnel. Judges also did not know and understand the workings of
mediation. In fact, a number of judges did not believe in the efficacy
of mediation as, perhaps, they have not experienced conducting
mediation in their courts.
The whole start-up process took almost a year to complete for the
first two model court sites. Each step was painstakingly planned. For
example, in recruiting mediators, an ideal profile with key
qualifications was formulated from the profiles of successful
mediators in existing mediation centers. Recruitment activities were
purposely spread out in various sectors of the society in order to
xix
Aside from the start-up activities, it was also essential that the model
courts were supported by capacity-building and efficiency-enhancing
measures. Activities such as periodic staff training, frequent
coordination meetings between and among stakeholders, constant
review of work processes, manualisation of standards, information
xx
By
Alfredo F. Tadiar
Chair, ADR Department
Philippine Judicial Academy
In 1978, when work to establish a neighborhood justice system was begun, there were
about a little more than 40 million Filipinos living in the country. At the time of this
writing in 2007, in just one generation or less than 30 years later, population has
increased more than double to about 87 million. Except for some reclamation work
from the sea, there has been no appreciable increase in the Philippine Territory that was
established when Spain ceded the Philippines to the United States of America by the
Treaty of Paris at the beginning of the 20th Century for US$20 million or at a price of
about $1.00 for every Filipino then living.
The fact of an ever increasing population living in a finite territory, by itself, increases
interaction and the inevitability of conflict among them.2 Each one of the human
beings living in the country has basic needs to be met, desires to be fulfilled and
aspirations to be attained. Their varieties are infinite, ranging from the mundane urge
to secure the basic necessities of life, such as food, clothing and shelter, to the spiritual
desire to achieve heavenly bliss.
The unceasing pursuit to satisfy these needs and wants brings home the undeniable
basic condition of human existence, that is, that people live in an interdependent world.
For indeed it cannot be denied that, as the poet John Dunne says “The death of any man
diminishes me; for no man is an island, complete unto itself, each one is part of the
main. Therefore, ask not for whom the bell tolls. It also tolls for you”. No individual,
not even a family, can exist as a self-sufficient unit. They cannot, individually or
collectively, possibly grow, produce or manufacture everything they need even for
1
Much of the discussion made in this section are attributed to Hart and Sacks, The Legal
Process: Basic Problems in the Making and Applicatition of Law “Introductory Note on
the Principle of Institutional Settlement”, pp. 1 – 6. Handout in Harvard class, 1958.
2
Recognition that rapid population growth “hampers the struggle against hunger and
poverty” and delays achieving “adequate standards of living, including food, clothing,
housing, medical care, social security, education and social services, thereby impairing
the full realization of human rights” was made at the U.N.Conference on Human Rights
at Teheran, UN Doc. A/Conf. 32/41 (1968).
Barangay Justice 3
mere survival. This fact of human interdependence is made even more self-evident in
the pursuit to satisfy wants and desires that go beyond mere existence, such as the thirst
for wealth and power, the desire for respect, and the need for love and companionship.
They all need the appropriate response from other human beings for satisfaction.
Differing priorities and abilities or power to satisfy the foregoing varied needs and
wants of individuals, inevitably produce conflict in such an interdependent human
relationship.
In sum, the conditions that make conflict in human society inevitable are: 1) increasing
population; 2) living in a fixed geographical territory; 3) having differing needs and
wants; 4) with greatly disparate priorities, capacities and power to satisfy those desires;
5) which can only be done with the voluntary or coerced cooperation of others.
In general, such substantive arrangements for societal living, seeks the safety and
security of the life, liberty and property of individuals. This is done by restricting the
free use of violence and deceit, and directing compliance with promises made. In
addition to prohibiting undesirable conduct, such societal arrangements also set forth
the kinds of affirmative conduct that are required of each community member as his
due contribution to the common interest and welfare. These are, among many others,
the payment of taxes that are necessary for the support of government or rendition of
military service.
3
For the relation of “Law and Custom”, see Chapter on said subject, Lloyd, The Idea of
Law (1970). See also, Fernandez, Custom Law in Pre-“Conquest Philippines (1976).
4
Written in “virtually indestructible” clay tablets that exist up to the present time, are the
laws of ancient Mesopotamia, ca. 3000 BC. “Law in Ancient Mesopotamia”, 27 Harvard
Law School Bulletin” No. 4, Summer, 1976.
5
Presidential Decrees issued by deposed President Marcos were treated as law.
Barangay Justice 4
Modes of Social Ordering6
It is a point that need not be belabored that the various human relationship in society
must be brought into a workable and productive order if that society is not only to
survive, but to progress. Development, progress and the greatness of a nation depend
upon first attaining the basic pre-condition that is societal order.
At the macro or national level, legislative enactments directly seeking to resolve the
conflict between the landless and the landed sectors of society were done through the
Land Reform Act 7 and the Urban Land Reform Act 8, both of which are, up to this
writing, still being implemented. Another example is the Indigenous Peoples Rights
Act of 1997 (Republic Act No. 8371) which seeks to solve the claim of indigenous
peoples to their ancestral domain before they were displaced by the modern state.
All kinds of disputes may be resolved under three general categories: the unilateral
mode, the bilateral mode and the third party intervention mode.
A. Unilateral Mode
As the term indicates, this is an action that is taken by one of the disputants without
regard to the wishes of the other party. This could take the form of fight, flight or
surrender, and forgiveness. At the micro level, the more aggressive party can take
some violent action against the other, to cow the latter into submission. At the macro
level, this could be like the decision of former President Estrada to wage war against
the Muslim separatists resulting in the capture of Camp Abubakar. Unfortunately, such
unilateral solutions only give rise to more problems.
6
“Social Ordering is a term used by Harvard Law Professor Lon Fuller in his article
“Mediation”, 44 Southern California Law Review, 305 (1971).
7
Presidential Decree No. 2 proclaimed the entire country as a land reform area effective
26 Sept. 1972.
8
P.D. 1517, 75 O.G., No. 1, p. 9.
9
Fuller, The Morality of Law,( Rev. Ed., 1971).
Barangay Justice 5
Flight may be physical such as to run away from a fight or from a problem. Moving
away from a pesky neighbor and re-locating to a more peaceful neighborhood is a good
example. It could also be psychological flight. The latter is known as rationalization,
that is, reasoning that there is really no problem in the first place. This is illustrated in
Aesop’s fable about a fox that couldn’t reach a bunch of grapes and justifying its
decision to give up by saying to himself that he did not want he grapes anyway, as they
looked sour.
Surrender or giving in to the demand of the other side is the third type of response
under this unilateral category. Ill feelings arising from being exploited could lead to
exacerbation of the problem.
Another aspect of this response is to forgive whatever was done to the one extending
the act of forgiveness. This gives a good feeling of being generous and magnanimous.
At the national level, this could be in the form of a unilateral grant of amnesty by the
national government to rebels or tax evaders. On the other hand, the rebel grantees
skeptically view amnesty as a strategy of national government to unilaterally weaken
the rebel cause without waiting for the result of negotiations for peace which should
include a bilaterally agreed-upon amnesty. On the part of tax evaders, it is also viewed
as an effort to raise revenues in the guise of amnesty.
B. Bilateral Mode
This second mode means direct negotiations between the disputants to arrive at a
settlement of the dispute between the parties that could be mutually beneficial. The
result at the micro level is a compromise agreement 10. At the national level, the result
could be a peace pact to end a rebellion11. This could be the beneficial result of
bargaining on the basis of interest and principle, not on hard and fast position.
There are two forms for this mode, a facilitative intervention or an evaluative and
decisional one. The first kind may take the form of conciliation or mediation where a
neutral third party facilitates communication between the parties to analyze their true
interest. This has often been called assisted negotiations. At the international level, this
could take the form of a “good offices” intervention of a third nation which may host
talks between a national government and a rebellious faction of its society.12
10
The Civil Code defines a compromise as a contract, whereby the parties, by making
reciprocal concessions, prevent litigation from arising or put an end to one already
commenced.
11
Government has entered into separate peace agreements with the military rebels and
with the Moro National Liberation Front (MNLF). It is currently negotiating another
agreement with the Moro Islamic Liberation Front (MILF).
12
Indonesia hosted the successful peace negotiations between the Philippines and the
MNLF. Malaysia is currently hosting the peace talks going on between RP and the
MILF.
Barangay Justice 6
The second kind of response under this third mode could be arbitration or judicial
resolution of disputes. In this case, the arbitrator or judge decides the dispute based on
relevant standards of law or contract. It is based on the evaluation of the evidence
presented by the parties and is thus classified as evaluative.
While both methods involve processes for resolving disputes, they may be
distinguished from each other in the following significant respects:
A compromise that settles a dispute is the product of both parties agreeing on the terms
thereof. A judgment is the intellectual product of a judge or an arbitrator for deciding
which of the contending parties was right or wrong in doing what is charged.
The focus of litigation is the act or omission that is the subject of the complaint. It is thus
rightly called an “act-oriented process.” The lady symbol of justice is blindfolded to
represent the need to prevent justice from being swayed erroneously when one considers
the kind of person who committed the act charged. Thus, evidence of character14, such as
social rank, wealth or poverty, good or bad reputation, and the like, cannot be initially
introduced as they are considered prejudicial evidence. That means evidence that may
sway emotions and produce bias. After a judgment of conviction for the crime charged,
the sentencing stage now becomes a “person-oriented process” so that the penalty may
be tailor-suited to the particular person to be sentenced. This is the case with the
bifurcated trial of criminal cases under the American system. It is only after a verdict of
guilty that the blindfold is literally removed to allow the imposition of a penalty suitable
to the person of a convicted accused. Unfortunately, in Philippine criminal trials, a mix-
up has taken place whereby evidence of mitigating and aggravating circumstances are
considered together with evidence of guilt or innocence. It is like an accused saying “I
am innocent but if you find me guilty, please be lenient in imposing my punishment”.
This kind of trial has been criticized as more prone to a miscarriage of justice than a
bifurcated one.
In contrast, mediation is focused on the individual disputants and is therefore aptly called
a “person-oriented process”. Effort must be exerted to discern the values each party
holds, as well as their interests, needs, apprehensions and concerns. A good mediator,
armed with this knowledge, would then be able to effect a “trade-off of values” in order
to convince the parties to agree on a settlement.
13
Article 2028, Civil Code.
14
Section 51, Rule 130, Rules of Court.
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Since the focus of litigation is on the act, it must necessarily be “backward-looking”. This
is because the ultimate purpose of litigation is to punish a wrong that was committed.
While the purpose of punishment is plain enough in criminal prosecutions, it is less
obvious in civil cases. Nevertheless, when one prays for “punitive damages” or
“exemplary or corrective damages”15 which are prayed for in the interest of the public
good to deter others from doing what was charged, the punitive orientation of even civil
litigation becomes obvious.
Once an act has been committed, it becomes a past event. In criminal law, one can only
be punished for an “overt act” that constitutes part of a criminal attempt to commit a
crime. This is the earliest stage at which a crime may be punished. The idea that no one
may be charged, much more punished, for what he is merely intending to commit, is a
sound principle in the administration of criminal law in democratic countries.
On the other hand, mediation is “forward looking” in the sense that its efforts are directed
to reconciliation of the parties. The act charged is merely the starting point to mend the
relationship that was broken or impaired because of it.
The result of mediation may be a win-win agreement; that of litigation must always be a
win-lose decision. The judgment is a clear condemnation of a wrong or the exoneration
of innocence. It has been insightfully observed that society needs the black and white
judgment of litigation to keep alive its sense of right and wrong. Otherwise, the gray area
of a compromise may serve to dull it.
The ADR movement is a reform measure. For it to succeed, it must satisfy the two
conditions necessary for reform: first, there must be a grave dissatisfaction with
something in the present system; and second, a strong desire to change or to improve it.
These reasons served as basis for the Action Program for Judicial Reform that was
initiated by the Davide Court.
1. Interminable Delay
The formal method of resolving disputes of all kinds, whether between individuals or
between an individual or an institution, is entrusted to the judiciary. In the course of
time, this has been the most overstressed mode, resulting in the problem of court docket
15
Section 5, Articles 2229 to 2235, Civil Code.
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congestion arising from the “abuse, overuse and misuse of the courts”.16 This litigious
culture of society has overloaded the system beyond its capacity to handle. There are
about a million cases pending before the courts at all levels in the judicial hierarchy. This
has prompted the characterization of judicial resolution of disputes as “intergenerational
justice”17. This is used in a pejorative sense that is intended to convey the deplorable idea
that one cannot obtain justice in the courts within one’s own lifetime. This delay calls to
mind that legal doctrine that “justice delayed is justice denied.”
2. High Costs
The costs of judicial proceedings should be assessed not only in terms of financial
disbursements, although that is already considerable. Docket fees have considerably
increased to a hundredfold and even as much as 500% with the amendment of Rule 141
to raise revenue for the increase of salaries of judges. When hefty lawyer’s fees and
litigation expenses are added, there is reason to invoke the constitutional prohibition that
no one shall be denied access to the courts by reason of poverty.18
The expenditure of time for attending court trials, conferring with lawyers, looking for
witnesses and many others, must also be considered. Another aspect to factor in is the
travel time from home to the court location in the town’s centers of population called
poblaciones. The average time for a civil case to be disposed of is about four years. That
is the average. In the extreme, there are cases that have lasted for more than 30 years!
The emotional costs must also be taken into account. Somehow, being taken to court
means the end of any meaningful relationship between the parties. Even the mere sending
of a legal demand letter in this culture strains relationship to a breaking point. The scars
of litigation seem to last forever.
16
Remark attributed to the late Chief Justice Fred Ruiz Castro.
17
Intergeneration justice as applied to environmental law, positively recognizes the legal
personality of unborn children to sue in court to prevent the degradation of the
environment that they are meant to enjoy.
18
Section 11 , Article III, Bill of Rights, 1987 Philippine Constitution.
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Former Chief Justice Artemio Panganiban focuses on four problems of the judiciary that
he sought to address during his watch. He has code named these corrosive problems as
ACID. “A” stands for restricted ACCESS to the courts; “C” for CORRUPTION; “I”
for INCOMPETENCE; and “D” for DELAY in the delivery of quality justice19 in
judicial proceedings.
The problems of costs and popular incomprehensibility earlier discussed are factors that
severely restrict access to judicial justice. The problems of delay, costs and
incomprehensibilty were the concerns addressed in a positive way by the Katarungang
Pambarangay Law.
The problem of judicial corruption or what has been called by ousted President Estrada as
“hoodlums in robes” is sought to be minimized, if not eradicated, by better recruitment of
judges and more effective disciplinary actions.
The judicial process is outrightly punitive in the prosecution of criminal cases. But even
the pursuit of civil litigation is also punitive. This can easily be seen from the prayer
made by the plaintiff to be awarded punitive damages. The award of exemplary damages
which the plaintff also often prays for, “for the good of the public so that they may be
deterred from following the bad example given by the defendant”, is undoubtedly
punitive in nature.
The foregoing conclusion is inescapable because that is inherent in the judicial process.
The end product is a judgment that is made in relation to the legal right asserted and the
claimed failure to discharge the corresponding obligation to respect that right. This
entails upholding one party as the “winner” and the other as the “loser”. The imposition
of the appropriate penalty is the necessary consequence of such conclusion.
Many times, however, a complainant is not really interested in having the respondent
jailed or fined. This is true of many disputes involving close relatives, neighbors, friends
or others with whom the complainant has some kind of a relationship, such as that
between employer and employee. In these cases, the parties must continue with their
relationship notwithstanding the damage caused by the dispute. The parties must return to
live in the same neighborhood or to work in the same company. In these cases, the true
interest of the complainant is an opportunity to ventilate his grievance, explore the cause
19
Address by C.J. Panganiban, 30 Nov. 2006.
20
Ibid.
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of the problem, get an assurance that the offending conduct will no longer be repeated
and thereby restore the disrupted relationship.
The imposition of a penalty in the foregoing situations, damages the relationship between
the disputants beyond repair. The moral condemnation implied from the penalty
imposition entails a “loss of face”, a loss of pride and dignity that amor proprio, so
important to the Filipino, cannot accept. As a result, the rift between the disputants is
widened to a chasm that can no longer be bridged.
Several approaches have been taken for the solution of the grave problem o docket
congestion. Each approach is based on differing perceptions of the causes of the problem
or, at least, the factors that add to its complexity and gravity.
A. Direct Approach
The direct approach to reduce the clogged court dockets may be called “output-
oriented”. It is focused on increasing the judicial disposition rate of pending cases. It
involves making the judges more efficient in the performance of their function. Trainings
on case anaylsis, simplification of issues, more efficient pre-trial, case flow management,
decision writing and others, contribute to judicial efficiency. Specialization of courts in
distinct fields of law increases case disposition because an expert judge can decide a case
pertaining to his specialty much faster than a “generalist” judge. Filling up the many
vacancies in courts will speed up the disposition of cases that are dormant because of the
absence of a judge. Simplification of procedure will prevent a case from being stalled by
reason of problems connected therewith, and thereby allowing trial on the merits sooner.
Judicial efficiency is rated according to case disposal rate. A 100% efficiency that results
in zero backlog is reached when case disposal within a given period equals the number of
cases that are filed within the same period. The average disposal rate under this standard
is about 65%. This means that 35% more cases are added to the mountain of backlog
every year. The limits of judicial efficiency and human capacity have been reached
without making a dent on the backlog of cases. A new approach to solving the problem
has become necessary.
B. Indirect Approach
This approach would decrease the indiscriminate filing of cases in court. It is also called
the input-oriented approach.
a. Decriminalization of offenses
Although perhaps not deliberately intended at the time of their adoption to decrease the
work load of judges, there are early efforts towards imposing a procedural bar to judicial
access of conciliable cases. One of them is the doctrine that mandates exhaustion of
administrative remedies before resorting to the courts. A second move was made in 1950
when the Civil Code of the Philippines was made effective. It included a provision that
requires the exertion of “earnest efforts” to settle the dispute among “members of the
same family”21. Unfortunately, this laudable effort suffered a setback through the
decision of the Supreme Court22 that held this provision to be inapplicable if an in-law
was involved in the dispute, as in-laws are not members of the same family. The author
criticized this holding as being culturally insensitive because it has turned cherished in-
laws into virtual outlaws.
A revival of these earlier procedural screening devices was made in 1978 to weed out
workload cases from the court, that experience has shown, would eventually wash out by
extrajudicial settlement anyway.
21
Article 222 , Civil Code, re-enacted into Article 150 of the Family Code.
22
Hontiveros v. RTC of Iloilo, Branch 25, June 29, 1999.
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On 11 June 1978, President Marcos signed into law P.D.1508, known as the
Katarungang Pambarangay Law. Then Chief Justice Fred Ruiz Castro predicted that
“P.D.1508 will play a role of historic proportions in the administration of justice”. It is
tragic that he did not live long enough to witness the fulfillment of his prediction.
Simply put, the KB law is a procedural bar against direct judicial recourse by the
disputants of the cases that it covers, except upon performance of a pre-condition, which
requires the personal confrontation of the parties and failure of earnest efforts to arrive at
a compromise agreement regarding their dispute.
While the indirect approach would lessen the caseload of the judiciary, as already
discussed, it does not affect the mountain of backlog of cases that are pending therein. A
complementary approach to address this problem thus became necessary.
In 1991, with funding from The Asia Foundation, the U.P. Office of Legal Aid under the
direction of its Director, Professor Alfredo F. Tadiar, undertook a pilot project entitled
Court-Referral of Pending Cases to Mediation23. The purpose of the experiment was to
determine the feasibility of diverting pending court cases to outside mediation. The
experiment was conducted in a provincial area represented by San Fernando, La Union,
270 kilometers away from the other project site in Quezon City. The results of the study
show that the success rate of provincial cases settled at 31.14 % was higher than the
urban site at only 11.76%.
In 1999, after the establishment of the Philippine Judicial Academy in 1996, the idea of a
court-annexed mediation system was revived with the training of mediators from two
pilot sites, Mandaluyong and Valenzuela, both in Metro Manila. The training was
conducted in Subic, Olongapo City. With the successful results thereof, the Court-
Annexed Mediation (CAM) rapidly expanded to all regions in the country.
This was an experiment that started in two pilot sites, one in Bacolod in the Visayas and
another in San Fernando, Pampanga. Funding assistance came from the Canadian
International Development Agency (CIDA). Essentially, mediation is conducted at two
levels: first at the CAM level, and if not successful, the pre-trial judge makes another
effort to settle the case, including neutral evaluation of the evidence. The innovation
introduced under this experimental project is that the judge-mediator is automatically
disqualified from trying the case and is required to turn it over to his pair judge or another
one chosen by raffle, for the actual trial of the case. The reason for this innovation is that
conciliation may have induced the parties to divulge confidential information to the
mediator-judge that may affect his neutrality, if he were to try the case. If JDR mediation
23
See Final Report, Pilot Project on Court Referral for Mediation, book bound, 127
pages, 1993.
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is unsuccessful, and the mediator-judge is allowed to conduct the trial of that case, his
integrity as a neutral and detached judge may be compromised since it is impossible for
him to compartmentalize his mind to exclude the privileged communication.
From the two initial project sites, JDR has expanded to include the entire province of
Negros Occidental and Pampanga. New project sites in Cagayan de Oro, Benguet and La
Union were also added.
Again with funding assistance from the US AID, a pilot experiment was conducted in
2002 to determine the feasibility of expanding trial court mediation to the appellate level.
The three- month experiment showed that the cases settled were the equivalent of the
workload of an entire division of the Court of Appeals.
Because of the successful result, the Appeals Court Mediation (ACM) was
institutionalized with the training of a core of trainers, the recruitment and training of
mediators, and an internship program.
It is further provided by the second paragraph of Section 35 of the same law that the
CIAC “shall continue to exercise original and exclusive jurisdiction over construction
disputes although the arbitration is ‘commercial’(as defined in Section 21 thereof) and
“notwithstanding the reference to a different arbitration institution or arbitral body in
such contract or submission.”24
The passage of the ADR Act of 2004 (R.A.9285) gave impetus to the diversion of
pending court case to an outside forum. Construction disputes that are filed in court
despite an arbitration clause is authorized to be dismissed25 so that it could be referred to
24
Rule 4.1, CIAC Revised Rules of Procedures Governing Construction Arbitration,
November, 2005.
25
Sec. 34, R.A. 9285.
Barangay Justice
arbitration before the CIAC. Similarly, it is mandated that international commercial
disputes are to be resolved by arbitration, using the Model Law of the United Nations
Commission on International Trade Law (UNCITRAL).
The dissatisfactions over judicial resolution of disputes that was earlier discussed are
each positively addressed by the Kararungang Pambarangay Law.
On the matter of heavy costs entailed by judicial processing, KB dispute processing is the
least expensive mode. A minimal filing fee of P20.00 is charged for filing a complaint.
Accessibility is assured by making dispute processing available in every barangay, thus
bringing justice literally to everyone’s doorstep. Travel time to a centralized location
becomes inconsequential. Conciliation could be agreed upon, and often takes place at a
venue or time most convenient to the parties and the mediator. Thus, time taken away
from work is minimized.
Finally, when the parties agree on the terms of their compromise agreement, the KB law
vests it with the force and effect of a court judgment. Thus, in the event of non-
compliance or violation of their agreement, the aggrieved party may move for
enforcement without having to go to court. This is one of the most significant innovations
introduced by the KB law whereby a contract is in effect converted into an enforceable
judgment of a court of law.
After being convinced of the advantages of mediation over litigation, there is a danger
that parties would seek to settle all disputes by compromise agreements secured by that
mode. As defined by the Civil Code,26 compromise is made by “making reciprocal
concessions” to avoid litigation or put an end to one already commenced. This authorizes
a bargain where a diminution or waiver of rights is made by one party as a trade-off of a
return favor by the other. This results in the oft-used characterization of a “win-win”
agreement that is mutually beneficial to both parties.
26
Article 2028, Civil Code.
Barangay Justice
The foregoing description of the process also infers the standard for determining the type
of disputes appropriate for mediation. And that is, a dispute that involves only the private
interests of the parties, since that is a situation where they are authorized by law to waive
their rights. The implication of this is that where public interest is involved in the
dispute, it is better left to the judicial mode for resolution. For instance, private
individuals should have no business compromising constitutional issues. A good
illustration of this divide is the case of a law student who sued his law professor for
starting his class with a prayer that ends with “in the name of Jesus Christ, our Lord,
Amen.” The plaintiff claims that this is a violation of the principle of Separation of
Church and State and the freedom of religion 27that are both constitutionally guaranteed.
This was particularly aggravated because the dispute occurred in a State University
subsidized by public funds. Thus, it was further argued that this violates the prohibition
against the establishment of religion made in the same constitutional provision. An offer
to compromise by persuading the teacher to cease the offending prayer was correctly
rejected on the ground that the plaintiff cannot waive the constitutional rights involved.
For the guidance of all, a black and white ruling by the judiciary is necessary.
• Under the law, no dispute covered by it may be filed directly in “court or any other
government office for adjudication unless there has been a confrontation of the parties
before the Lupon Chairman or the Pangkat and no conciliation or settlement has been
reached as certified by the lupon secretary or pangkat secretary as attested to by the lupon
chairman or pangkat chairman.” It is important to stress that the restriction against direct
recourse is not only with the courts but also before any adjudicative agency of the
government. Thus, a criminal complaint filed with the public prosecutor of a covered
case that has not undergone prior barangay conciliation, may be suspended or dismissed
until the condition has been met.
• The evidence showing compliance with the condition required is the Certificate to
File Action issued by the proper KB officials which is usually attached to the complaint.
Where a complaint is filed in court without undergoing the required KB conciliation, the
case may be dismissed “on the ground of lack of a cause of action or prematurity”31.
27
Article III, Section 5, 1987 Philippine Constitution.
28
Section 412, R.A. 7169, Local Government Code.
29
Section 415, ibid.
30
Section 416, ibid.
31
Royales v. Intermediate Appellate Court, G.R. No. 65072, January 31, 1984.
Barangay Justice
• Section 415. Appearance of parties in person.- In all katarungang pambarangay
proceedings, the parties must appear in person without the assistance of counsel or
representative, except for minors and incompetents who may be assisted by their next-of-
kin who are not lawyers.
• There is no other law that appears so outrightly discriminatory against lawyers than
the above-quoted statutory provision. A minor who is a party to a dispute may not even
be represented by his own parent if either of them happens to be lawyer! Surprisingly, the
legal profession has not posed any challenge at all to this questionable provision.
•
• The third feature is that a successful mediation resulting in a compromise
agreement is given the force and effect of a judgment of a court of law. This means that
the terms of settlement can be executed or enforced like any court judgment.
• Section 417 of the law provides as follows:
• Under the original law, the power of execution was denied to the barangay officials
because of a perceived danger of abuse. Congress became convinced that said power
could be safely entrusted to them after about a dozen years of experience.
For the KB Law to be applicable, the following conditions must exist: 1) the dispute is
between natural persons;32 2) the disputants must live in the same city or town;33 and 3)
the dispute is not among those expressly excluded by the law.34
Since the law was designed for the resolution of interpersonal disputes, it excludes
disputes involving corporations, partnerships and other artificial persons. This avoids
problems related to sufficiency of authority to represent their principal. Further, the law
requires the personal appearance of the disputants themselves so that the decision to settle
can be effectively implemented. Thus, no representation of a party is allowed except for a
minor who may be represented by his next of kin who is not a lawyer.
32
Section 410, id.
33
Section, id.
34
Section 408, ibid.
Barangay Justice
The third condition arose from the decision of the Technical Working Committee to vest
jurisdiction not by enumerating the kinds of disputes that may be settled but including all
kinds of disputes except those that are enumerated.
There are three (3) general categories of disputes that require resolution: 1) civil disputes;
2) criminal cases; and 3) administrative cases. Under the first category, there is no limit
to the amount involved in order that the KB law may be invoked. A popular
misconception arising from a provision in the original law vesting jurisdiction to issue a
writ of execution upon the first level courts, is that the jurisdiction involved in KB
disputes of civil cases is similarly limited to the jurisdictional amount for courts of the
first level. A clarification made it clear that jurisdiction in civil cases is unlimited as to
amount. The reason for such broad grant of jurisdiction is that one case settled is one less
case that will reach the courts.
For criminal cases, the penalty provided for by law must not exceed imprisonment of one
year or a fine of not more P5,000.00, or both such penalties. The reason for this
restricted jurisdiction is that the higher interest of societal security must prevail over the
private interests of the individual. To allow the compromise of more serious crimes
would detract from the effective operation of the deterrent principle which is the
cornerstone of societal security.
c. Venue
There are four (4) alternative venues35 for filing a complaint under the KB Law.
a) If both disputants are residents of the same barangay, the complaint shall be
filed with Lupon of said barangay;
b) If the parties reside in different barangays within the same city or town, it
shall be filed in the barangay where the respondent or any of them resides, at
the choice of the Complainant;
c) If the dispute involves real property, it shall be filed in the barangay where
the property is situated or where the greater portion thereof lies.
d) If the dispute arose in the workplace where both parties are employed, it shall
be filed in the barangay where such workplace is located.
35
Section 409, Local Government Code.
Barangay Justice
e) If the dispute arose in an institution where both parties are enrolled for study,
it shall be filed in the barangay where such institution is located.
The principal reason for the venue is that the Barangay Captain may be able to
exert his influence more effectively to effect a settlement.
The Barangay Captain is the principal mediator under the KB system. As soon as the
complaint is filed, he is required to “summon the Respondent and his witnesses to
appear before him for mediation of their conflicting interests.”36 If he fails to settle the
dispute, he is mandated to constitute the Pangkat ng Tagapagkasundo,37 a panel of
three conciliators which must make a second try to secure a compromise settlement of
the dispute. The Pangkat is given fifteen (15) days from the date it convenes,
extendible for a similar period, to persuade the parties to settle their differences 38.
It is only upon failure of this two-step conciliation process that a Certificate to File
Action before the proper court is issued by the Pangkat Secretary and attested by the
Pangkat Chair.
e.Sanctions
The original law contains a provision on sanctions39 that would impose the penalty “as
for indirect contempt of court upon proper application” therefor by the concerned KB
official. Further, if it is the complainant who refuses or willfully fails to appear in
compliance with the summons issued, the complaint shall be dismissed and this fact
shall be reflected in the records and in the minutes so as to “bar the complainant from
seeking judicial recourse for the same cause of action”. On the other hand, if it is the
respondent who is at fault, he shall be barred “from filing any counterclaim arising out
of or necessarily connected therewith.”
f. Arbitration
Sec. 413. Arbitration.- a). The parties may, at any stage of the
proceedings, agree in writing that they shall abide by the
arbitration award of the lupon chairman or the pangkat.
36
Section 410 (a), Local Government Code.
37
Sec. 410 (b), ibid.
38
Sec. 410 (e) ibid.
39
Section 4 (d), P.D. 1508
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Theoretically, the parties could appoint the Punong Barangay as the Sole Arbitrator or
the Pangkat as the Panel of Arbitrators. In practice, this mode is rarely resorted to,
perhaps because it is hardly suggested to the parties as an available alternative in either
of these two stages. In a research study that the author conducted40, the reason for this
is that the arbitrational mode is not well understood. Further, the training of KB
officials has been focused on the mediation mode with hardly any attention being paid
to the arbitrational mode. Thus, the officials are not comfortable with the evaluation of
evidence that are submitted to them as basis for making a decision or an arbitral award.
g. Repudiation
There are two kinds of repudiation that are available to an aggrieved party under the
KB Law. The first is the repudiation of the arbitration agreement that the parties may
have agreed upon which must be done “within five (5) days from the date thereof”. It is
important to note that there is no remedy of repudiation of an arbitral award. The
proper remedy is “a petition to nullify the award filed before the proper city or
municipal trial court”.41
The other kind is the repudiation of the compromise agreement that may have been
secured. It must be filed by the aggrieved party “within ten (10) days from the date of
the settlement” in the form of a written statement that must be sworn to before the
Lupon Chairman on the ground his consent thereto was “vitiated by fraud, violence or
intimidation”42. The ground for repudiation of the arbitration agreement is the same.
40
“Research Survey on the Conciliation of Disputes under the KB Law”, book bound
mimeo, 215 pages, 1984, UP Law Center.
41
Section 416, Local Government Code.
42
Section 418, Local Government Code.
Barangay Justice
Conclusion
Statistics from the Bureau of Local Government Supervision (BILGS) show that in the
two decades and a half that the KB system has been operating since 1980, a cumulative
total of 4,052,000 cases have been settled, which, it is concluded, would have been
otherwise filed in the judicial system. Based on the average amount of P9,500.00 that is
estimated to cost the government for each of those cases, the barangay justice system has
saved the government the staggering sum of P24,663,435,660.00. The estimated cost per
case resolved is computed by adding the operating budget of the court for a year and
dividing it by the number of cases resolved during that year. Actually, the cost would be
much greater if the capital outlay costs (building the Halls of Justice, for instance) were
added. By lessening the workload of judges through preventing the filing of cases that
would have been resolved judicially, the KB system has undoubtedly contributed to a
great degree in lessening court docket congestion.
43
Section 2, R.A. 9285.
COURT-ANNEXED MEDIATION: SUMMING UP THE PAST
AND CHARTING THE FUTURE
Brief History
It all started with a pilot test of CAM in the first- and second-level
courts of Mandaluyong and Valenzuela cities from December 1999 to
February 2000, pursuant to A.O. 99-1-01 SC and implemented by the
Philippine Judicial Academy (PhilJA). The pilot posted a modest
settlement rate of 40% 3 . To bolster this experiment, PhilJA
∗
The thoughts expressed in this article are the authors’ alone and do not necessarily reflect any policies
or positions of The Asia Foundation or the United States Agency for International Development.
1
Particularly, the United States Agency for International Development and The Asia Foundation.
2
Previous experiments in Court-Annexed Mediation (then called Court-Referred Mediation) were
conducted in 1991 by the Supreme Court and the University of the Philippines College of Law. First-
and second-level courts in San Fernando, La Union and Quezon City participated in the pilot project.
Eight mediators were employed with 236 cases actually referred for settlement. Of these, 71 cases were
successfully settled, 157 were returned to the courts, and eight cases were dismissed after the initial
conference.
3
Out of 103 cases referred for mediation, 67 cases were actually mediated, of which 27 were settled.
Court-Annexed Mediation 25
The success of the second pilot test was due to a system of referral
devised by PhilJA, thus resulting in the mediation of more cases.
Further, a pool of mediators was systematically trained and judges
and court personnel were simultaneously equipped with skills
necessary for the implementation of CAM. PhilJA also created an
Alternative Dispute Resolution Sub-Committee (later converted into a
full Committee), which was instrumental in the promotion, planning,
supervision, and ultimate institutionalization of CAM. Moreover, the
promise of CAM led the Supreme Court to issue en banc Resolution
A.M. 01-10-5-SC-PHILJA dated October 16, 2001, which provided
for initial measures in the implementation of CAM.
4
Revised Guidelines on Mediation, A.M. 01-10-5-SC-PHILJA, October 16, 2001.
26 Court-Annexed Mediation
The Supreme Court continued its support for CAM by mandating the
monthly inventory and referral of cases for mediation through A.C.
No. 02-2002 dated April 2, 2002.
Court of Appeals
5
A.M. No. 4-2-04-SC, July 20, 2004.
6
A.M. No. 02-2-17-SC, April 16, 2002. The United States Agency for International Development
(through its AGILE project and later on, through The Asia Foundation) also funded the Appellate Court
Mediation.
7
Resolution No. 04-04 as cited in “Mediation – An on-going concern in CA” by Atty. Marie Claire
Victoria Mabutas-Sordan,
http://ca.supremecourt.gov.ph/index.php?action=mnuactual_contents&ap=mediation (last visited on
April 28, 2008).
Court-Annexed Mediation 27
Milestones
In 2004, five years after the pilot test of CAM, an evaluation was
conducted by the Social Weather Stations in the three pilot areas -
National Capital Region, and the cities of Cebu and Davao. Judges,
court personnel, mediators, lawyers and litigants whose cases
underwent mediation participated in the survey. Survey results
revealed that 71% of the lawyers and 62% of the litigants who
participated in CAM satisfactorily settled their cases. In addition,
96% of the respondents expressed interest in mediation as an
alternative, cost-efficient means of resolving disputes. 8
Mediation Fee
8
Evaluation of Court-Annexed Mediation by Stakeholders, Report on a Survey Project for the Philippine
Judicial Academy sponsored by The Asia Foundation, with funding support from USAID, July 23, 2004.
9
A.M. No. 04-02-02 SC, July 20, 2004, effective August 16, 2004.
10
Ibid.
28 Court-Annexed Mediation
Starting in 2005, the PMC opened 37 new units in the trial courts of
La Union, Cagayan, Bulacan, Batangas, Bicol, Cebu, Zamboanga del
Sur, Misamis Oriental, Lanao del Sur, and Rizal using the PMC
Fund. To date, a total of 131 PMC units 14 have been established in
13 judicial regions throughout the country, specifically in areas with
significant caseloads. This includes three units established in Taytay
and Antipolo, Rizal, and in San Jose del Monte, Bulacan through
Mobile Court-Annexed Mediation; i.e. Supreme Court buses serving
as mediation centers.
11
A.M. No. 05-3-25-SC-PHILJA, April 25, 2005.
12
A.M. No. 05-3-13-SC-PHILJA, July 5, 2005.
13
A.M. No. 04-8-12-SC, July 19, 2005.
14
54 units funded under TAF; 40 units funded by JURIS; and 37 units funded by the PMC Fund.
Court-Annexed Mediation 29
15
Caloocan, Las Pinas, Makati, Malabon, Mandaluyong, Manila, Marikina, Muntinlupa, Navotas,
Paranaque, Pasay, Pasig, Pateros, Quezon City, San Juan, Taguig, Valenzuela, and an Appellate Court
Mediation Center in Manila.
16
PMC Fund: San Fernando, Agoo, Aringay, Bacnotan, Balaoan, Bauang, Naguilian, and San Juan in La
Union; JURIS: Benguet and Baguio in Benguet Province.
17
Tuguegarao City
18
JURIS: San Fernando City, Angeles, Clark, Mabalacat, Porac, Apalit, Arayat, Bacolor, Floridablanca,
Guagua, Lubao, Mexico, Macabebe, Sta. Ana, Sta. Rita, and Sto. Tomas; PMC Fund: Malolos and one
Mobile Court-Annexed Mediation unit in San Jose del Monte, Bulacan.
19
Batangas City, Lipa, Lemery, Rosario, Tanauan in Batangas; and Mobile Court Annexed-Mediation
units in Taytay and Antipolo, Rizal.
20
Naga, Pili, Calabangga, San Jose, Iriga, Ligmanan.
21
Bacolod City, Bago City , Binalbagan, Cadiz City, Calatrava, Cauayan, EB Magallona, Escalante City,
Himamaylan City, Hinigaran, Ilog, Isabela, Kabankalan, La Carlota, La Castellana, Murcia, Pontevedra,
Sagay City, San Carlos City, Silay City, Sipalay, and Villadolid.
22
TAF: Cebu City, Mandaue City, Lapu-lapu City; PMC Fund: Talisay City, Naga, Carcar, Minglanilla,
Argao City, and Toledo City.
23
Tacloban, Abuyog, Alangalang, Basey Samar, Carigara, Dagami, Dulag, Jaro, Burauen, Capoocan,
Palo, Tanauan, Tolosa, Naval, Baybay, Ormoc, and Hilongos.
24
Zamboanga City
25
TAF: Cagayan de Oro; PMF Fund: Misamis Oriental, Bukidnon, and Camiguin.
26
Davao City, Digos City, Panabo City, and Tagum City in Davao; and General Santos, Maasim,
Saranggani, Polomolok, Koronadal, Tupi, Tampakan, Surallah, Banga-South Cotabato, Norala-South
Cotabato, and Tantangan-South Cotabato.
27
Iligan City, Ozamiz City, Marawi City.
30 Court-Annexed Mediation
Success rate
Interestingly, the caseload of trial courts for the past eight years
follows a downward trend. Although the decrease in caseload cannot
solely be attributed to CAM, the program can be credited for the
36,155 35 cases cleared from court dockets through mediation,
contributing to the drop from 814,033 pending cases in 2002 to the
703,004 judiciary caseload in 2007. 36 It can therefore be deduced that
out of the 111,029 caseload drop in the judiciary from 2002 to 2007,
33 percent were resolved through CAM. This figure is even
considered a conservative count since in mediation, separate but
related cases or counts (e.g. three counts of violation of B.P. 22 or the
Bouncing Checks Law) 37 are mediated together, and one settlement
28
A.M. No. 01-10-5-SC-PHILJA, October 16, 2001.
29
A.M .No. 4-3-15-SC-PHILJA, September 26, 2006.
30
In 2005, 25,745 cases were referred for mediation while in 2006, 21,210 cases were referred for
mediation.
31
34,370 were referred in 2007, the biggest number so far since 2002.
32
Dean de los Angeles’ presentation on Court-Annexed Mediation during the National Conference on
Court-Annexed/Referred Mediation in November 2006 (hereafter referred to as “Dean De Los Angeles’
Court-Annexed Mediation Lecture”).
33
Out of the total 16,990 cases actually mediated, 12,199 were successfully settled, bringing the success
rate to 72 percent.
34
Out of the total 50,660 cases actually mediated from 2002 to 2007, 36,155 were successfully mediated.
35
This includes 2007 data.
36
Summary Report of Cases for Years 2002-2007, Statistical Reports Division, Court Management
Office, Office of the Court Administrator, May 6, 2008. Caseload for 2007 excludes cases from the
Supreme Court and new cases from the Court of Appeals.
37
In Philippine criminal law, the general rule is that one criminal act is counted as a separate crime. For
instance, to knowingly issue one unfunded check is one violation of the Bouncing Checks Law. Hence,
each unfunded check issued is counted as a separate crime even if the checks are subject of one
Court-Annexed Mediation 31
Challenges
Stakeholders’ Attitudes
Lawyers pose a major concern. They are not simply reticent about
mediation, most are outrightly hostile. Schooled in the adversarial
tradition, lawyers have to go through some kind of catharsis in order
to appreciate the value of settling a case rather than having a dispute
go through the long-winding court processes. Dean Eduardo de los
Angeles, Chairperson of PhilJA’s ADR Committee, noted that
lawyers experience a form of “neurosis” when they go to court to
settle a case within the bounds of the law, and then before pre-trial,
engage in a process of “forgetting the law” to explore the possible
settlement of the same dispute without trial. 39
But, this attitude is not just a matter of paradigm, but also a question
of livelihood. Lawyers are wary that with the early resolution of their
cases through court-annexed mediation, they will be deprived of their
per appearance fee; hence, they see mediation as a threat to their
source of income. It’s a pity that the legal profession has slid into a
monetary bottom line mentality and has lost its service orientation.
40
Van Winkle, John R., “Mediation: A Path Back for the Lost Lawyer”, American Bar Association,
2001.
41
This was uttered by a Manila Regional Trial Court judge in an interview conducted by one of the
authors in 2007. The same judge said that should a judge allow a case to be settled rather than
adjudicated, the public will think that the judge is either lazy or incompetent.
Court-Annexed Mediation 33
CAM only covers civil cases and the civil aspects of certain criminal
cases such as violation of B.P. 22 (Bouncing Checks Law) and quasi-
offenses (criminal negligence). Although B.P. 22 violations and civil
cases - particularly involving breach of contract and collection of sum
of money and damages - constitute the biggest bulk of cases filed in
courts, there is still a big room for extending CAM to civil aspects of
other minor crimes such as grave threats, slander, libel, and slight
physical injuries, which comprise the next biggest bulk of criminal
cases filed in court. 42
Minimal referral
courts target a total of, at least, 100,000 cases referred for mediation
each year. The Supreme Court’s call for a monthly inventory and
referral of cases for mediation in A.C. 20-2002 dated April 24, 2002
is still to be fully carried out.
It has been observed that referral of cases for mediation is at its peak
during special “Settlement Months.” A stronger directive may have to
be in place to ensure that all mediatable cases are referred for
mediation. This may be started with an audit of mediatable and
referred cases in courts, in areas with PMC units. Sanctions can be
imposed on judges for failure to refer cases for mediation.
One solution that was implemented was to raise funds through the
imposition of mediation fees as part of the filing fee. Though in other
jurisdictions, e.g. the United States, court-administered mediation are
funded by public sources through a statutory user-free tax imposed on
new civil case filings, numerous issues have been raised as regards
this strategy to raise revenue for CAM, such as the inequity of cross
subsidy. 46 However, for now, the Supreme Court does not see a
better option. A nationwide audit needs to be conducted to properly
monitor collection and to impose the necessary sanctions for
compliance.
46
Courts with no CAM in place will still have to collect mediation fees.
47
Organizational and Financial Study of the Philippine Mediation Center and its Units, funded by The
Asia Foundation with USAID support, completed in 2006.
Court-Annexed Mediation 35
Monitoring
48
The amount of the Fund the time of the CPRM study.
49
JDR, a component of CIDA’s JURIS Project, seeks to move the process of mediation and conciliation
to the level of the judge in order to decongest court dockets, contribute significantly to the fair resolution
of mediatable cases, increase satisfaction of litigants in the court process, as well as bring greater access
to justice, especially to the poor. JDR has been pilot tested in five model sites outside Metro Manila.
Early this year, JDR was introduced in Makati City, the financial center of the Philippines.
36 Court-Annexed Mediation
Evaluation of Mediators
50
See tools used by the Colorado Office of Dispute Resolution; the Institute for the Study of Conflict
Transformation’s Summative Assessment for Certified Transformative Mediator; Mediator Certification
by the Maryland Council for Dispute Resolution; and Mediator Certification by Family Mediation
Canada, as cited in Senft, Louise Phipps and Cynthia Savage, “ADR in the Courts: Progress, Problems,
and Possibilities”, ADR Handbook for Judges, ABA Section of Dispute Resolution, 2005.
51
Lieberman, Etty, Yael Foux-Levy, and Peretz Segal, “Beyond Basic Training: A Model for
Developing Mediator Competence”, Conflict Resolution Quarterly, Vol. 23, No. 2, Winter 2005.
52
Ibid.
Court-Annexed Mediation 37
Specialization
53
Senft, Louise Phipps and Cynthia Savage, “ADR in the Courts: Progress, Problems, and Possibilities”,
ADR Handbook for Judges, ABA Section of Dispute Resolution, 2005.
54
Ibid.
Court-Annexed Mediation 39
Though the Philippines has both formal (in the case of the Barangay
Justice System) and informal traditions of dispute resolution
processes in various ethno-linguistic groups (e.g., the Tiyawan of the
Tirurays or the Bodong System of the Kalingas), court-annexed
mediation compared to these indigenous systems is still in its infancy.
Thus, it is quite tempting to predict the future direction of Court-
Annexed Mediation because the possibilities are incredibly diverse,
given the experience worldwide. But, any attempt to determine the
future of Court-Annexed Mediation will be nothing but a glimpse,
and even then, will only be of immediate probabilities.
While not all cases are appropriate for ODR, disputes with low
economic value or with parties who are geographically
segregated, are best for ODR since it makes economic sense, as it
may be less costly and more practical than off-line mediation.
There are disputants who file cases but don’t realize that the cost
of going to courts might be more than the economic value of the
case. Thus, the greatest advantages of ODR are the cost and
convenience factors. The courts can be a trailblazer in this respect
if ODR becomes one of the options in a multi-door courthouse.
The easiest route would be for the courts to start with an
asynchronous format where communication is not occurring
simultaneously between the disputants and mediator, as in a chat
room, but instead through a series of emails or other messages
separated by time. After some time, the courts can move on to
more sophisticated technologies.
58
Senft, Louise Phipps and Cynthia Savage, ADR in the Courts: Progress, Problems, and Possibilities,
ADR Handbook for Judges, American Bar Association Section of Dispute Resolution, 2004, page 299-
300.
59
Ibid., pages 301-302.
60
The American Bar Association is working with the Office of the Court Administrator in the pilot of
small claims courts.
Court-Annexed Mediation 43
Conclusion
Once these happen, PhilJA and PMC should be ready to handle more
referred cases. The impact of a greater volume of cases to be
mediated, on efficiency and effectiveness should be considered. It is
not too early to plan for these future scenarios as more PMC units are
established throughout the country. In the end, what is important is
that CAM should go beyond simply decongesting court dockets or
lessening the burden of the court by reducing the number of cases that
require judicial attention (though these are very important
aspirations). CAM should genuinely offer parties an affordable and
readily accessible means of resolving their disputes before spending a
substantial amount of time and money in case preparation. It should
also assure the public that the courts are truly concerned about the
emotional and financial welfare of the people and demonstrate the
collaborative commitment of the bar and the judiciary to provide
affordable and timely dispute resolution options.
By:
Imelda D. Gidor
In going the distance, however, the lawyer’s combative trial skills often
overshadow the essence of his being, first and foremost, a vessel of
solutions. Sadly, he is known more as a warrior, programmed to argue,
oppose and survive, than to counsel, negotiate or bargain. Heated court
exchanges define how he sifts through conflicts, how he slugs it out for
years, even decades. In the courtroom saga, his reputation is mainly built,
his competence usually judged. While trial skills are vital, the challenge
is to cater these appropriately to solve problems without undue delay.
Surely, there is a “better way”. In the words of the former Chief Justice
Hilario Davide, Jr 1 :
1 Excerpts - Keynote Address by C.J. Hilario G. Davide, Jr., at the launch of the Court of Appeals Mediation Project, 31 Aug.
2005, Court of Appeals Mediation Room & Auditorium, CA, Manila
46 ADR and Lawyers
2 RE: Judicial Audit conducted in the Regional Trial Court, Branch 54, Lapu-lapu City, A.M. No. 05-8-539-RTC, November
11, 2005; Re: Report on Judicial Audit (MTCC, Br.5, B.C.), Nov. 23, 2004
3 OFFICE OF THE COURT ADMINISTRATOR vs. N. DILAG, Adm. Matter No. RTJ-05-1914, September 30, 2005
4 1987 CONSTITUTION, ARTICLE IV, Section 16. “All persons shall have the right to a speedy disposition of their cases in all
judicial, quasi-judicial, or administrative bodies.”
1987 CONSTITUTION, ARTICLE VIII, Section 5.- Par. 5 - Supreme Court’s mandate to: “Promulgate rules concerning the
protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts x x x. Such rules shall provide
a simplified and inexpensive procedure for the speedy disposition of cases x x x.” (emphasis supplied)
5 Civil Code, Articles 2028-2030; 2034, see footnote 17
“Alternative Dispute Resolution Act of 2004”, R.A. No. 9285
6 1997 Revised Rules on Civil Procedure, Rule 1, Sec. 6: “Construction. – These Rules shall be liberally construed in order to
promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding.”
ADR and Lawyers 47
1997 Revised Rules on Civil Procedure, Rule 18, Sec. 2 and 2(a): “Sec. 2. Nature and Purpose. – The pre-trial is mandatory. The
court shall consider:“(a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution;”
Revised Rules on Evidence, Rule 130, Sec. 27 - Offer of Compromise Not Admissible - see footnote 19
7 A.M. No. 04-3-05-SC – Guidelines for Parties’ Counsel in Court-Annexed Mediation Cases
A.M. No. 03-1-09-SC - RE: Proposed Rules on Guidelines to be Observed by Trial Court Judges and Clerks of Court in the
Conduct of Pre-trial and Use of Deposition-Discovery Measures
A.M. No. 04-1-12-SC – Re: Proposed Guidelines for the implementation of An Enhanced Pre-trial Proceeding through
Conciliation and Neutral Evaluation.
8 Excerpt - Keynote Address by C.J. Reynato S. Puno entitled “ADR-A Welcome Development”, 2nd International Conference
on Construction Arbitration, New World Renaissance Hotel, Makati City
48 ADR and Lawyers
The members of the Bar had long been exhorted to exert every effort
to assist in the speedy administration of justice 10 , as well as pursue the
same principles behind such recent ADR innovations as enhanced pre-
trial or court-annexed mediation, as enshrined in the Code of
Professional Responsibility:
9 Excerpts - Keynote Address by C.J. Hilario G. Davide, Jr. at the Enhanced Court-Annexed Mediation Project Launch in San
Fernando City, Pampanga, held at the Benigno S. Aquino, Jr. Hall, July 30, 2004
10 M.C.B. SUZUKI, represented by M.T.B. GABUCO vs. E. TIAMSON, Adm. Case No. 6542, September 30, 2005
11 Code of Professional Responsibility, promulgated by Supreme Court, June 21, 1988
ADR and Lawyers 49
As held by the Supreme Court, “a lawyer has the duty to assist in the
speedy and efficient administration of justice. 12 To highlight the
point, the High Court said:
12 A. Ramos & M.R.De Dios vs. A.J. Pallugna, Adm. Case. No.5908, Oct. 25, 2004
13 same as footnote 10
50 ADR and Lawyers
Many still favor trial proceedings as, indeed, the rationale for it, in
certain cases, rings loudly today as in the past. But more and more
application of ADR has gradually squeezed into the basket of legal
services. While the concept of justice is strongly linked with court
proceedings, more and more claims are heard and remedied through
ADR.
14 A.M. No. 04-1-12 –SC – Guidelines for the Implementation of an Enhanced Pre-trial Proceedings Through Conciliation and
Neutral Evaluation
15 A.M. No. 04-3-05-SC – Guidelines for Parties’ Counsel in Court-Annexed Mediation Cases
16 A.M. No. 03-1-09-SC - RE: PROPOSED RULES ON GUIDELINES TO BE OBSERVED BY TRIAL COURT JUDGES
AND CLERKS OF COURT IN THE CONDUCT OF PRE-TRIAL AND USE OF DEPOSITION-DISCOVERY MEASURES;
A.M. No. 01-10-5-SC – PhilJA – Designating the PhilJA as component unit of SC for court-referred, court-related mediation
cases and other alternative dispute resolution mechanisms, and establishing the Phil. Mediation Center for the Purpose
17 Civil Code, Art. 2028. “Compromise – A contract whereby the parties, by making reciprocal concessions, avoid litigation or
put an end to one already commenced.”
Civil Code, Art. 2029. “The court shall endeavor to persuade the litigants in a civil case to agree upon some fair compromise.”
Civil Code, Art. 2030. “Every civil action or proceeding shall be suspended: (1) If willingness to discuss a possible compromise
is expressed by one or both parties; or (2) If it appears that one of the parties, before the commencement of the action or
proceeding, offered to discuss a possible compromise but the other party refused the offer.”
Civil Code, Art. 2034. “There may be a compromise upon the civil liability arising from an offense; but such compromise shall
not extinguish the public action for the imposition of the legal penalty.”
18 Civil Code, Art. 2029 - see above;
Evidence, Rule 13, Sec. 27. Offer of compromise not admissible - see footnote 19
Family Code of the Philippines, Art. 151. - "No suit between members of the same family shall prosper unless it should appear
from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed.
If it is shown that no such efforts were in fact made, the case must be dismissed. This rule shall not apply to cases which may
not be the subject of compromise under the Civil Code.” ( italics supplied)
ADR and Lawyers 51
rendered, counsel and litigants are free to settle 19 . Civil cases not
covered by court-annexed mediation, may even be settled, at the will
of the parties. Even cases on appeal may still be settled through
appeals mediation. But pre-trial remains the crucial turning point. On
several occasions, the High Tribunal said:
19 Civil Code. Art. 1306. “The contracting parties may establish such stipulations, clauses, terms and conditions as they may
deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.”
Revised Penal Code, Art. 100. “Civil liability of a person guilty of felony. — Every person criminally liable for a felony is also
civilly liable.”
Revised Penal Code, Art. 104. - “What is included in civil liability. — The civil liability established in Articles 100, 101, 102,
and 103 of this Code includes:
1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.”
BUT NOTE PLS. - Evidence, Rule 13, Sec. 27. – “Offer of compromise not admissible. — In civil cases, an offer of
compromise is not an admission of any liability, and is not admissible in evidence against the offeror.
“In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an
offer of compromise by the accused may be received in evidence as an implied admission of guilt.
“A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to lesser offense, is not admissible in evidence
against the accused who made the plea or offer.
“An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as
proof of civil or criminal liability for the injury.”
Family Code of the Philippines, Art. 151. "No suit between members of the same family shall prosper unless it should appear
from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed.
If it is shown that no such efforts were in fact made, the case must be dismissed. This rule shall not apply to cases which may
not be the subject of compromise under the Civil Code.” ( italics supplied)
20 Ofc of the Court Adm. vs. D. Espanol, A.M. No. RTJ-04-1872, Oct. 18, 2004
21 Rizal Comm. Banking Corp. vs. Magwin Mktg Corp., G.R. 152878, May 5, 2003
52 ADR and Lawyers
further clarifies the nature of legal work as, in the words of Charles
W. Wolfram 24 :
The High Court states in the same case, that as early as the mid-
1970s, the University of the Philippines Law Center listed the
dimensions of the practice of law in even broader terms as advocacy,
counseling and public service.
Clearly, the knowledge and skills of mediation are long akin to law
practice. Only now, the roles are played, not in partisan or divisive
encounters, but in non-adversarial endeavor. Only now, the language
is spoken not to provoke, but to suit consensus-building. To be
precise, the culture of law practice is merely re-shaped to the
contours of ADR objectives.
26 Discussion on this topic is based on “Introduction to Interest-based Mediation and Negotiation”, Training Module for Justice
Reform Initiatives Support-Phils., by MDR Associates Conflict Resolution Inc., Ottawa, Canada, Copyright 2004
ADR and Lawyers 55
First, it is resource-efficient.
Conclusion
ADR is not exempt from valid criticisms. Just like any movement for
change or reform, the pursuit of ADR is not only about reaping its
rewards, but is also about hurdling inevitable challenges, as expressed
by Chief Justice Puno:
But certainly, for now, ADR widened the path towards solutions,
allowing lawyers to choose diverse avenues to complement litigation,
not merely supplant it, in enhancing its role as “deliverer of prompt,
appropriate and affordable justice.” 28
27 Excerpt - Keynote Address by C.J. Reynato S. Puno entitled “ADR-A Welcome Development”, 2nd International Conference
on Construction Arbitration, New World Renaissance Hotel, Makati City
28 A.M. No. 04-3-05-SC ; Statement by David R. Brink
JUDICIAL DISPUTE RESOLUTION (JDR) AS AN
INNOVATIVE MODE OF DISPUTE RESOLUTION
I. Introduction
∗ Primary Consultant, Judicial Dispute Resolution Evaluation Project. This article is an abridged
version of a longer evaluation report submitted to the JURIS Project.
1
The Justice Reform Initiatives Support (JURIS) Project is a five-year, $CDN 6.5 million project
designed to strengthen the use of mediation as a means of alternative dispute resolution (ADR),
improve access to justice, and support advocacy initiatives which contribute to over-all justice reform
in the Philippines. The JURIS Project was developed to contribute to specific needs identified in the
Supreme Court of the Philippine’s Action Program for Judicial Reform 2001- 2006 (APJR), that are
consistent with CIDA’s developmental goals, and the type of technical advisory services available
from Canada. (JURIS’ Project Description).
2
For Pampanga, the JDR program covers the following cities and municipalities: (i) City of San
Fernando; (ii) Bacolor; (iii) Sto. Tomas-Minalin; (iv) Mexico-San Luis; (v) Sta. Ana-Candaba; (vi)
Arayat; (vii) Porac; (viii) Mabalacat-Magalang; (ix) Clark, (x) Guagua; (xi) Lubao; (xii) Sasmuan;
(xiii) Floridablanca; (xiv) Sta. Rita; (xv) Angeles; (xvi) Macabebe; (xvii) Macabebe-Masantol; and
(xviii) Apalit-San Simon. For Negros Occidental, the program covers (i) Bacolod City; (ii) Murcia;
(iii) Don Salvador Benedicto; (iv) Silay City; (v) EB Magalona; (vi) Manapla; (vii) Victorias; (viii)
Talisay City; (ix) Bago City; (x) Pulupandan; (xi) Valladolid; (xii) San Enrique; (xiii) La Carlota;
(xiv) La Castellana; (xv) Moises Padilla; and (xvi) Isabela. For the Baguio/Benguet area, the program
covers (i) Baguio City; (ii) La Trinidad; (iii) Buguias; and (iv) Buguias-Bakun. For Misamis Oriental,
the program covers (i) Cagayan de Oro City; (ii) Jasaan-Claveria; (iii) Opol-El Salvador; (iv)
Tagaloan-Villanueva; and (v) Alubijid. For La Union, the program covers (i) San Fernando; (ii)
Agoo; (iii) Bauang; and (iv) Balaoan.
60 Judicial Dispute Resolution
was in place in some 156 trial courts in these five pilot sites. During
that period, approximately 5,000 3 cases underwent JDR. In early
2008, JDR was introduced in Metro Manila, with the program being
initially introduced in the Metropolitan and Regional Trial Courts of
Makati. Plans are currently underway to roll out the program in other
areas.
3
This figure includes both completed and pending cases.
4
The team is composed of: the author as principal consultant, together with Atty. Claro V. Parlade,
Senior Partner, Parlade Hildawa Parlade Eco & Panga Law Offices; Dr. Melissa Lopez Reyes,
Associate Professor, Department of Psychology, De La Salle University; and Atty. Maria Sheila F.
Panga.
5
Rule 18 provides in part:
“Sec. 2. Nature and purpose.
The pre-trial is mandatory. The court shall consider:
(a) the possibility of an amicable settlement or a submission to alternative modes of
dispute resolution. x x x “
Judicial Dispute Resolution 61
than asking the parties, at the start of pre-trial, whether any such
possibility exists. If the parties replied in the affirmative, the judges
would usually keep rescheduling the pre-trial conference until the
parties were able to submit a compromise agreement. If the response
was negative, the judges would simply move on to the other phases of
pre-trial (such as marking of exhibits, identification of witnesses,
simplification of issues) and then proceed to set the case for trial. 6
The Guidelines divide judicial proceedings into two stages. The first
stage involves the filing of a complaint until the completion of CAM
and JDR, while the second stage consists of pre-trial to trial and
judgment. Under these Guidelines, all civil and criminal suits falling
under the category of mediatable cases 8 are first referred to a court-
appointed mediator, who is given thirty days within which to
facilitate a settlement. Cases that are not settled by CAM are then
referred back to the judge to whom the case had originally been
assigned, for a second attempt at mediation, which is called JDR. If
this second attempt at settlement is still unsuccessful 9 , the case is then
re-raffled to a different judge for pre-trial and trial. 10
6
Focus group discussions with 47 (out of a total of 156) first- and second-level court judges conducted
at San Fernando, Pampanga, Baguio City, Bacolod City, Cagayan de Oro City, and San Fernando, La
Union on various dates starting from November 28, 2007 until November 30, 2007.
7
A.M. No. 04-1-12-SC-PHILJA dated August 29, 2006. The explanatory note of this Administrative
Order reads as follows:
“Despite the priority given Rule 18 of the Rules of Court, as amended, for the amicable
settlement of cases, most judges go through the function of exploring settlement
perfunctorily for various reasons, including fear of being disqualified if he goes into the
process more intensively. Thus, it is the intention of the JURIS Project to restore the
importance of this priority and install innovative procedures that will remove such
apprehension.”
8
The following cases are to go through JDR after CAM:
a) all civil cases, settlement of estates, and cases covered by the Rule on Summary Procedure,
except those which by law may not be compromised;
b) cases cognizable by the Lupong Tagapamayapa (Panel of Conciliators) and those cases that
may be referred to it by the judge under Section 408. Chapter VII of Republic Act No. 7160,
otherwise known as the 1991 Local Government Code;
c) the civil aspect of BP 22 (Bouncing Checks) cases;
d) the civil aspect of quasi-offenses under Title 14 of the Revised Penal Code; and
9
e) the civil aspect of Estafa (Swindling), Libel and Theft.
Under the Guidelines, a JDR judge has either thirty days or sixty days to complete the JDR
proceedings depending on whether he presides over a first- or second-level court. First-level courts
(called “Metropolitan Trial Courts”, “Municipal Trial Courts”, “Municipal Trial Courts in Cities” or
“Municipal Circuit Trial Courts”) are generally those whose jurisdiction covers civil cases in which
62 Judicial Dispute Resolution
As a general rule, the JDR judge is not permitted to preside over the
trial of the same case if mediation does not succeed, unless the parties
specifically ask him to continue as the trial judge. The rule preventing
a JDR judge from hearing the case on the merits, in case of failure of
the JDR process, was designed to encourage candor and full
participation by the parties, who may otherwise be reluctant to
participate if they knew that information received during the
mediation may be deemed as an admission by the judge, and used as
evidence against them.
the amount in dispute does not exceed P100,000.00 (P200,000 for cases filed in Metro Manila), and
criminal cases where the maximum imposable penalty does not exceed six years’ imprisonment. If the
cases involve higher amounts or penalties, these would generally fall under the jurisdiction of the
second-level courts (called the “Regional Trial Courts). However, there are certain types of cases that
would always fall under the jurisdiction of the first-level courts regardless of the amount or penalties
involved. These include, among others, cases involving violation of the Bouncing Checks Law (BP
No. 22), as well as forcible entry and unlawful detainer cases.
10
A slightly different procedure is followed if the originating court is a single-sala court as differentiated
from a multi-sala court. The term “multi-sala court” means that there is more than one branch of the
same court sitting in a particular town or city. For example, there are about fourteen (14) Regional
Trial Court branches sitting in Bacolod City (RTC Branches 41 to 54) and eight (8) RTC branches in
San Fernando, Pampanga (RTC Branches 41 to 48). For multi-sala courts, the procedure outlined
above is followed. On the other hand, the term “single-sala court” means that there is only one branch
of the same court assigned to a particular area. For example, in the municipality of Initao, Misamis
Oriental, there is only one RTC branch that has been created (RTC Branch 44), so RTC Initao is a
single-sala court. For single sala courts, the procedure for JDR is that the case is first referred for
mediation to the nearest court, which may be physically located in the next town or city. If JDR is
unsuccessful in that court, the case is then returned to the originating court for pre-trial and trial under
the Guidelines.
11
The Guidelines state:
“The goal of JURIS in JDR is to strengthen conciliation in the model court sites during
the pre-trial stage in order to expedite the resolution of cases and thereby help
decongest court dockets by utilizing the following models:
(1) JDR judge as mediator;
(2) JDR judge as conciliator;
(3) JDR judge as early neutral evaluator;
(4) A combination of any of the above; and
(5) Such other models as the Design and Management Committee may find adaptable to
the local setting.
As a mediator and conciliator, the judge facilitates the settlement discussions between
parties and tries to reconcile their differences. As a neutral evaluator, the judge assesses
the relative strengths and weaknesses of each party’s case and makes a non-binding and
impartial evaluation of the chances of each party’s success in the case. On the basis of
his neutral evaluation, the judge persuades the parties to reconsider their prior
reluctance to settle their case amicably. The entire process comprises JDR.” (A.M. No.
04-1-12-SC-PHILJA, p. 3.)
Judicial Dispute Resolution 63
New JDR judges undergo several days of training to prepare them for
conducting JDR. The trainors typically include experienced JDR
judges, communications experts and officials from both the Design
and Management Committee of the Philippine Judicial Academy
(PHILJA) and the Office of the Court Administrator (OCA). 12 The
training is a combination of lectures on mediation theory, practical
exercises and role-playing, videotaped teaching demonstrations,
mentoring, sharing of experiences and discussion groups. 13
A. Research methodology
12
Judge Divina Luz P. Aquino-Simbulan, Judicial Dispute Resolution: The Philippine Experience, at
http://www.iojt3conference.net/docs/ponencia26.pdf. The PHILJA is the research and training arm of
the Supreme Court. It is the office that will take over the active management and direction of the JDR
program upon the conclusion of the JURIS Project. The OCA is the office that assists the Supreme
Court in the exercise of its power of control and supervision over all courts and court personnel.
13
Id.
14
For this stage, the team obtained the raw data from the JURIS Local Area Researchers (LARs), who
were assigned to collect and assemble CAM and JDR program statistics from each of the participating
courts in their respective pilot sites. JURIS designated one LAR for each pilot site. In collecting the
data, each LAR was assisted by one or more JDR staff members working full-time on the site. The
program data collected by the LARs and JDR staff were compiled by the JURIS Research Team into
regular monthly statistical reports, both in spreadsheet and document form.
15
The team reviewed data gathered by the JURIS Project with respect to the different pilot areas, as well
as reports of JURIS based upon raw data obtained from the Office of the Court Administrator and the
pilot areas. Such data provided information on the following:
(a) average number of cases pending before the pilot courts within a six-month period
prior to the introduction of CAM/JDR in their respective pilot areas;
(b) average rate of disposition of the participating courts prior to the introduction of
CAM/JDR;
(c) average rate of disposition by the participating courts after the introduction of
CAM/JDR;
(d) total number of cases that went through CAM; and
(e) total number of unresolved cases that underwent JDR.
64 Judicial Dispute Resolution
second stage consisted of the generation of new data through the use
of survey instruments, 16 key person interviews and focus group
discussions 17 . The third stage involved field observation visits 18 to
each of the five pilot areas to capture information on the actual
In determining the impact of JDR, the team went beyond comparisons between court disposition rates
in the pilot courts before and after the introduction of CAM/JDR to note any increase or decrease. The
the first-level and second-level court statistics were also segregated to ascertain whether data would
bear out differences in effectiveness of CAM/JDR depending on the nature of cases, bearing in mind
that the bulk of cases handled by the first-level courts are bouncing checks cases and typically involve
minor sums of money, while cases in the second-level courts are more complex and often involve
more than simple monetary disputes. Possible correlations between increases or decreases of JDR
disposition rates were also studied along with increases or decreases in CAM dispositions and other
dispositions, to see if changes in JDR disposition rates are influenced by the success or failure of
CAM and other dispositions.
16
In order to determine stakeholder attitudes and perceptions regarding JDR, the team designed and
distributed survey questionnaires among all the 174 participating JDR courts (out of the 174 officially
listed as JDR pilot courts, the team eventually determined that only 156 actually conducted JDR,
since the others had been designated as special courts which oftentimes covered cases not eligible for
mediation under the JDR Guidelines). The respective clerks of these courts were asked to select two
of their pending JDR cases at random and, upon the completion of the JDR proceedings for these two
cases (whether or not the JDR proceedings resulted in settlement), to have each of the parties and their
respective counsel answer the questionnaires. In addition, each judge was also requested to
accomplish the survey forms. Using this procedure, a total of 1,566 questionnaires were sent-out.
From these questionnaires, the team received a total of 409 responses, for an overall response rate of
about 26%. Of the 409 responses received, 92 were from judges, 163 from lawyers and 154 from
litigants.
Separate questionnaires were drafted for each stakeholder group, with each questionnaire containing
an average of 35 questions. The survey questionnaires were designed to gauge the perceptions of the
stakeholders with regard to the following issues:
a. Stakeholder satisfaction
(i) usefulness of JDR
(ii) fairness of the JDR process
(iii) appropriateness of JDR
(iv) control over decision-making
(v) impact on relationship between the parties
(vi) satisfaction with outcomes
(vii) willingness to use JDR in future disputes
b. Program organization
i) adequacy of program directives, guides and standards
ii) over-all program coordination and management
c. Service delivery
i) extent to which potential participants have been made aware of program
ii) participant understanding of JDR process
d. Program quality
i) competence of judges in performing JDR
ii) competence of lawyers assisting parties in JDR
iii) neutrality and objectivity of JDR judges
17
In each of the five JDR pilot areas, focus group discussions (FGDs) were conducted among selected
groups of stakeholders (JDR judges, litigants and lawyers) to solicit their views on the above-
enumerated issues, and also to solicit views on how the program can be further improved. In order to
promote greater candor among the participants and allow more effective facilitation of discussions,
separate focus groups were conducted for each stakeholder group. The FGDs allowed a more in-depth
examination of stakeholder perception on various aspects of JDR and offered an opportunity to
validate or clarify survey results, and possibly provide contrasting perspectives. Among the issues
discussed at length were perspectives on the effectiveness of JDR, the factors that contribute to the
success of JDR, design shortcomings of the program and suggestions for improvement. Each
discussion took an average of two hours to complete.
18
The field observation visits to each of the pilot areas were primarily for the purpose of assessing the
adequacy of the training and skills of JDR judges. For every JDR session attended, a conference was
conducted with the judge prior to the JDR session, to discuss the judge’s views on JDR, style of
mediation, experiences, the use of other ADR processes as part of JDR, and similar matters. During
the session, the team observed how the judge’s technique reflects or varies from the JDR philosophy
and techniques described by the judge during the prior conference.
Judicial Dispute Resolution 65
Research Findings
19
Dean Raymundo Pandan, Dennis Lalata, Roda Cisnero, Veronica Tabique, Giselle Sanchez-Tan, “JDR
Statistics Report”, October 2006-December 2007. Monthly spreadsheets are on file with the author.
The statistics are collected regularly by the Local Area Researchers in all the participating courts
based on the regular reports submitted by these courts to the Office of the Court Administrator.
Although JDR was introduced in Bacolod and Pampanga in 2004, systematic collection of JDR
program data only started in 2006 after the program was rolled-out to Baguio, Cagayan de Oro and La
Union, so the foregoing data reflects only the JDR figures in all pilot sites starting October 2006.
20
In the full report, however, the team noted that if the post-JDR disposition figures were compared with
the pre-JDR disposition rates of all the participating courts, it was only in the first-level courts that
disposition rates increased significantly. In the second-level courts, there was no definite trend.
66 Judicial Dispute Resolution
TABLE 1
JDR Case Disposition Rates
Pilot Site No. of No. of No. of No. of No. of Settleme
cases cases cases cases cases nt rate
referred referred actually settled that (4) /
to JDR 21 to JDR submitte through refuse (4) + (5)
but no d to JDR JDR d to
(1) JDR took (1)-(2) (4) settle
place 22 (5)
(2)
23
Pampanga 736 26 710 199 511 28%
21 The number of cases reflected in the JDR Statistics Report above both in terms of “docket
count” or “folder count”. Docket count reflects the number of cases filed in a particular court
based on the assigned docket numbers regardless of whether these cases are related or may
have arisen out of a single transaction or event. Since courts are required to report the actual
number of cases pending before them, courts report their respective caseloads on the basis of
docket counts. Folder count, on the other hand, counts one dispute as one case regardless of
how many separate cases may have actually been filed by the parties arising from the same
transaction or event. For example, in cases involving violation of BP 22 (the Bouncing
Checks Law), if the accused is charged with having forged twenty checks, that would be
reflected as twenty separate cases under the docket count, since one criminal case will be
filed by the prosecutor’s office for each forged check. Under the folder count, however, that
would only be counted as one case. Using docket counts will reflect an inaccurate picture of
JDR settlement rates. In the foregoing example, when the twenty bouncing checks cases are
referred to JDR, there will only be one mediation proceeding conducted, and a settlement
would most probably result in the dismissal of all twenty cases. Reliance on the docket
count may lead to the conclusion that twenty separate mediation proceedings were
successfully conducted by the JDR judge, when in reality, only one was performed. The
figures cited above and in all other tables are based on folder counts as reflected in the JURIS
Statistical Reports.
22 The reasons why JDR may not have been conducted despite court referral include: the
refusal of the parties to submit the case to JDR; absence of one or both parties during the
scheduled JDR session; dismissal of the case or suspension of the proceedings by order of
the court; and similar reasons.
23 Data for Pampanga covers the period October 2006-November 2007.
24 Data for Bacolod/Negros Occidental covers the period October 2006-November 2007.
25 Data for Baguio covers the period October 2006-December 2007.
26 Data for San Fernando, La Union covers the period October 2006-December 2007.
27 Data for Cagayan de Oro/Misamis Oriental covers the period October 2006-December 2007.
Judicial Dispute Resolution 67
i. Summary of Responses
The survey responses in all the pilot areas show that, in general,
judges, lawyers and litigants strongly support and approve of JDR.
Specifically, the surveys indicate the following findings:
28 As of the end of 2007, there were approximately 1,500 JDR cases still pending before the five
pilot court sites. If added to the completed cases indicated in the table, the total number of
cases referred to JDR, both completed and pending, is approximately 5,000.
68 Judicial Dispute Resolution
STAKEHOLDER SATISFACTION
Across all pilot regions, judges and lawyers indicated agreement that
JDR is useful and effective for resolving disputes (Table 2). This is
significant in view of the team’s earlier observation that JDR
disposition figures do not clearly establish a positive impact of JDR
upon case disposal rates, at least as far as the second-level courts are
concerned. It could be said that the perception stems from a belief
that ADR, in general, is useful and effective in resolving disputes.
Indeed, one of the propositions tested in the survey is that the use of
ADR processes is an effective way of resolving pending cases in
courts, and both lawyers and judges expressed agreement with this
proposition. 37 But an almost identical result was achieved with
respect to the proposition that the JDR program is effective in
reducing the number of pending cases in court. 38
TABLE 2
JDR is useful and effective in resolving disputes
35
JQ#18 and 19; LaQ#17 and 19; and LiQ#17 and 18.
36
LaQ#18
37
59 out of 92 judges agreed with the proposition, while 128 out of 141 lawyers agreed.
38
56 judges and 128 lawyers agreed with the proposition.
39
In this article, only the combined figures for all the pilot sites are presented. The full evaluation report
contains a breakdown of all figures for all stakeholder groups in each pilot site.
Judicial Dispute Resolution 71
TABLE 3
Appropriate for judges to be mediators despite some
ambivalence on the part of judges and lawyers
3. JDR judges and the JDR process are widely perceived to be fair.
40
Pampanga and Bacolod City, where JDR has been in place since 2004.
72 Judicial Dispute Resolution
The survey included three (3) propositions that dealt with actions of
the JDR judge, namely: (i) the JDR judge usually tries to steer the
parties towards a settlement that is fair to both parties; (ii) the JDR
usually tells the parties what his idea is of a fair settlement; and (iii) a
JDR judge usually helps the parties settle the case on terms that the
judge thinks is fair to both parties. Note that in each of the foregoing
propositions, the judge utilizes his own standard of fairness and
makes the parties aware of his opinion. Implicit in the use of these
techniques is adherence to an evaluative mediation philosophy, even
if only for situations identified as appropriate by the judge. The
responses of judges do appear to affirm this philosophy; there was
almost unanimity with respect to all three propositions. Lawyers and
litigants appear to be comfortable with this mindset, albeit with some
(but not substantial) objection, only to the proposition that a JDR
judge should tell the parties his idea of a fair settlement. Notable,
however, is the consistent disagreement expressed by roughly half of
Baguio litigants, effectively ascribing unfairness on the part of JDR
as a process and the JDR judges. The source of the Baguio litigants’
disenchantment is difficult to pinpoint, but their responses imply that
some felt that the settlement attained through JDR was not fair, 41 that
the judge ought to, but did not, call attention to the unfairness, 42 and
that the judge failed to tell them that they had the right to refuse to
settle in JDR. 43 It can be inferred, therefore, that the Baguio litigants
perceive JDR as unfair because of the failure of the judge to prevent
an unfair settlement, or viewed another way, for approving an unfair
settlement.
The stakeholders’ views on the role of the judge raises the issue of
whether or not the judges are perceived to be fair, constitutes an
approval of an evaluative approach to JDR. Judges appear undecided
themselves because even as they assert that they have the
responsibility to evaluate parties’ settlements on the basis of their
standards of fairness, a majority (61%) agree that a JDR judge should
give the parties free hand in determining the terms of the settlement,
even though the judge may personally believe that the settlement
gives one party a significant advantage over the other. Even while
giving parties a free hand, judges believe it is appropriate to tell a
party what he thinks the result would be if the case went to trial, in
order to encourage the party to settle (59%).
41
More than 60% of Baguio litigants disagreed that the JDR judge tries to steer the parties towards a
settlement that is fair.
42
Half of the Baguio litigants disagreed that the judge tells the party his idea of a fair settlement.
43
Half of the Baguio litigants disagreed that the judge told them that they had the right to settle or not
settle.
Judicial Dispute Resolution 73
TABLE 4
JDR and JDR judges are perceived to be fair
TABLE 5
Stakeholders are generally satisfied with JDR outcomes
TABLE 6
JDR is perceived to have resulted in
improved relationships
1 2 3 4
All regions Judge 0 11.3 42.5 46.3
Lawyer 1.4 15.4 51.7 31.5
Litigant 6.1 16.0 51.1 26.7
TABLE 7
Strong indications of willingness to use JDR in the future
With respect to cost and time efficiency, JDR rates uniformly high
across all regions and among all stakeholder groups. JDR can reduce
costs for litigants because, unlike in CAM, there is no fee for JDR,
and the extent with which it accelerates dispute resolution lessens
actual and opportunity costs. For courts, JDR frees up court resources
by helping speed-up case disposal. For lawyers, JDR enables them to
handle more accounts by facilitating early settlement.
TABLE 8
JDR rates highly in terms of cost and time efficiency
PROGRAM ORGANIZATION
44
JQ#31 and LaQ#30.
76 Judicial Dispute Resolution
8. JDR program design and structure meet the goal of reducing the
caseload of courts.
Judges and lawyers in all pilot areas agree that the JDR program
design and structure meet the goal of reducing the caseload of courts
(Table 9), and that the current directives, guides and standards
governing JDR are adequate (Table 10).
TABLE 9
JDR program design and structure meets
goal of reducing caseload
45
JQ# 29, 30; LaQ#29; and LiQ#25.
46
JQ#33, 34; LaQ# 32, 33; and LiQ#27, 28.
47
27% in Pampanga, 23% in Bacolod.
48
30% in Pampanga, 35.7% in Bacolod.
Judicial Dispute Resolution 77
TABLE 10
Directives, guides and standards governing JDR
perceived to be adequate
TABLE 11
JDR program seen as well designed and managed
SERVICE DELIVERY
49
JQ#4, LaQ#4, and LiQ#4.
50
JQ#13, 14, 15; LaQ#12, 13, 14; and LiQ#12, 13, 14.
51
JQ#1,2,3; LaQ#1,2,3; and LiQ#1,2,3.
78 Judicial Dispute Resolution
Except for the litigants in Baguio, all the stakeholder groups across
all the pilot areas affirm the effectiveness of judges in conducting
JDR (Table 12). Interestingly, the strongest affirmation came from
judges themselves, with 43.8% agreeing and 48.8% strongly agreeing
that judges conduct JDR effectively. In terms of numbers, lawyers
expressed greatest approval at 90.5%, although their approval was not
as strong, with only 37.3% agreeing. The lowest approval was given
by litigants at 87%, and although judges’ performance may be
commendable, this may indicate that even as judges are perceived to
be effective in attaining the goals of JDR, there remains a possibility
of improvement.
12. Judges, and to a lesser extent, lawyers and litigants, believe that
JDR gives the parties the opportunity to discuss creative options for
settling disputes.
It must be noted that while 100% of judges agree that the JDR judge
usually gives the parties the opportunity to discuss creative options
for settling the dispute, neither the lawyers nor the litigants fully
agree. Similarly, while all but one judge agreed that the JDR judge
usually gets the parties to look beyond their legal positions and focus
on settlement options that would solve the dispute; litigants’ support
for the proposition is comparatively lukewarm 52 .
52
20% of litigants in Pampanga, 23.6% in Bacolod, 50% in La Union, 53.7% in Baguio and 11.4% in
Cagayan de Oro disagreed.
Judicial Dispute Resolution 79
With respect to the proposition that “I try not to influence the parties
on what terms or conditions the settlement should contain even where
I personally believe that a potential settlement would leave one party
significantly better off than the other”, Pampanga judges largely
agreed (70%) and Bacolod judges also agreed, albeit to a lesser extent
(60%). In this case, both indicate a preference for facilitative
mediation. With respect to the proposition that “the judge usually tells
the parties what terms or conditions the settlement should contain”,
Pampanga judges disagreed but Bacolod judges agreed, again
offering a contrasting approach to mediation.
TABLE 12
Judges are effective in conducting JDR
TABLE 13
Judges should neutralize power imbalance
1 2 3 4
All regions Judge 4.3 10.9 56.5 28.3
Lawyer 5.8 15.6 53.9 24.7
Litigant 3.1 8.4 40.5 48.1
TABLE 14
Positive view on the Quality of Lawyers’ Performance
strongly agree that before starting a JDR case, the judge usually tells
the parties that they have the right to settle or not settle; that the
proceedings are confidential; and that the judge explains the court’s
guidelines on the conduct of JDR in detail to the parties.
TABLE 15
Participants understand the JDR process
PROGRAM QUALITY
This may indicate that judges and lawyers either feel a greater need to
improve the program or see potential for improvement in the JDR
process. Stakeholders appear to be sufficiently comfortable with JDR
as integral to court litigation as they strongly endorse its
implementation outside the pilot area (except the litigants in Baguio)
(Table 18).
TABLE 16
Lawyers and litigants strongly support continuation of
the JDR program in its current form
TABLE 17
Judges and Lawyers nevertheless welcome
program modifications
TABLE 18
Stakeholders agree on implementation outside pilot areas
In the full report to the JURIS Project, the team noted that while it
appeared that JDR resulted in a significant amount of settlements, if
the post-JDR disposition figures were compared with the pre-JDR
disposition rates of all the participating courts, it was only in the first-
level courts that disposition rates increased significantly. In the
second-level courts, there was no definite trend.
84 Judicial Dispute Resolution
The team attributed this to two factors. First, parties have a much
greater incentive to settle early before the first-level courts because of
the limited penalty or amount that these courts are legally allowed to
impose or award. Thus, it may be easier for the first-level courts to
convince parties to compromise because early settlement is more
attractive than the prospect of a long drawn-out trial without the
possibility of a clear win. This, however, is not true in the case of
second-level courts. Considering the ability of second-level courts to
award higher amounts or impose tougher penalties, parties litigating
before the second-level courts may be more willing to go through a
lengthy trial with the expectation of a windfall.
Secondly, the more complex nature of cases that are heard before the
second-level courts may require a higher mediation skill set than
those that may be required for first-level courts. It is but natural that
more complex disputes be more difficult to settle, not only because
the higher cost of preparation for trial before the second-level courts
diminishes the financial incentive to settle, but also because there are
more issues requiring more than haggling over money that need to be
explored. Even the first-level judges agree that this is the case, with
their experience confirming that when the issue is all about how much
one wants to pay and how much another is willing to receive, chances
of settlement are greater. This makes sense, of course, because a dose
of realism on the capacity to pay of one party and the elimination of
posturing for bloated claims on the part of the other party, are
frequently all that is needed to prod parties to settle the case. But to
go beyond that requires more patience and skill, as well as a greater
investment of time and effort, on the part of the judge. In other
words, for JDR to attain the same level of success in the second-level
courts as those in the first level, second-level judges may have to
attain a higher level of competence in JDR.
This need is fully recognized by all the judges, as further training was
one of their most frequently suggested courses of action when the
team solicited recommendations for program improvement. Of
particular value would be knowledge-sharing among judges who have
JDR experience, as that would contextualize the conceptual or
theoretical part of training on interest-based negotiations/facilitation
and JDR techniques.
that are not easy to acquire, especially for judges whose years of
training and experience in an adversarial environment may, in fact,
create a mental hurdle that hinders the acquisition of the mindset and
skills that a successful JDR judge needs. As suggested earlier,
acquisition of such skills require further, and possibly more advanced,
training but, such training across the board will require considerable
financial investment, a need that must be considered in light of
another reality – that of the limited judicial resources for this purpose.
Given this concern, the creation of specialized JDR courts may be an
option worth considering, for the following reasons:
ii. Specialized JDR courts will allow judges who do not have
the mindset, willingness or innate ability to conduct JDR to
continue what they do best, in accordance with their preference,
i.e., to try and decide cases. It is evident from the survey
responses and the focus group discussions that there were non-
believers among judges (mostly second-level judges) whose
training and experience are steeped in a decidedly adversarial
rights-based orientation. For those judges, it is unlikely that
anything short of a long, intensive training will lead them to
embrace JDR. On the other hand, there are others who are
“natural” mediators, with the instinct and just the right touch to
establish the necessary connection with disputing parties in order
to facilitate dispute resolution. With specialized JDR courts, those
who possess the personality and the innate ability to facilitate
interest-based settlement discussions will not have to conduct trial
and write decisions, but just perform JDR on a full-time basis.
4. A simple reversal of the order of CAM and JDR, with JDR as the
first-tier process and CAM as the second, will address numerous
stakeholder concerns about having redundant processes.
58
Approximately 70% of all cases submitted to mediation under the CAM program are successfully
settled. See Jose T. Name, Jr., Summary of Court-Annexed Mediation Statistics for Years 2002-2006,
Philippine Judicial Academy (2007). According to this report, a total of 81,863 cases had been
Judicial Dispute Resolution 87
The high stakeholder perception of the fairness of judges and the JDR
process, in general, is encouraging and speaks well of the judges
participating in the pilot program. Still, the survey responses that
relate the fairness issues to the manner by which JDR is conducted,
even those expressed by a minority, are helpful and instructive in
considering possible improvements to the JDR program.
referred to mediation over the last six years of the 42,729 cases that actually underwent mediation,
28,563 or 70% were settled.
88 Judicial Dispute Resolution
Fourth, even so, the team noted that the litigants’ support for the
proposition that JDR allows exploration of creative options is
comparatively lukewarm. 60 This suggests that even neutral evaluation
may not suffice as a stand-alone technique. It requires that parties feel
that they are actually heard, storytelling being a very important part
of the mediation process. Storytelling is key to understanding the
parties’ underlying interests and facilitating option generation.
59
Please refer to the analysis of the Baguio litigants’ disenchantment with the JDR process.
60
20% of litigants in Pampanga, 23.6% in Bacolod, 50% in La Union, 53.7% in Baguio and 11.4% in
Cagayan de Oro disagreed.
Judicial Dispute Resolution 89
Fifth, the survey responses and the focus group discussions leave
little room for doubt that correction of power imbalances is perceived
as a critical function of a judge, which calls for a significant
qualification to the principle that the parties should be allowed to
freely enter into any settlement that they may deem appropriate.
Finally, the team noted that JDR does not have to be limited to any
one technique; given the strong rights-based orientation of the
stakeholders, consideration must be given to employing mini-trials,
whether binding or non-binding. This addresses the hesitation of
some judges in using neutral evaluation without the benefit of seeing
the evidence of the parties.
The team noted that while the lawyers play a critical role in any
settlement, as the litigants would not normally enter into any
compromise without the favorable endorsement of their lawyer, many
lawyers are not fully aware of the role they ought to play during JDR,
particularly with regard to their overall attitude towards settlement,
option-generation, evaluation of options and alternatives, and similar
issues. Although much of this is addressed by the ADR course
requirement in the Mandatory Continuing Legal Education Program,
introduction to ADR concepts should be done as early as law school
to impart the advantages of ADR upon future lawyers, and train them
in essential ADR skills, such as client counseling and negotiation.
JDR judge explains the process to the parties and apprises them of
their right to settle or not settle, the focus group discussions revealed
litigant concerns that judges do not take pains to describe the process
at the start of the JDR proceedings. In fact, the team learned that
oftentimes, judges issue subpoenas to the parties to compel their
attendance to the JDR sessions. While the issuance of subpoenas will
almost certainly ensure the parties’ presence, less coercive and
threatening measures may certainly be taken to achieve the same
result. The courts may perhaps consider sending invitations instead,
explaining the nature of the proceedings, discussing the requirements
of the process, requesting the parties to be prepared beforehand with
settlement options, and generally asking the parties and counsel to
come to the proceedings as thoroughly prepared for negotiations as
possible.
III. Conclusion
_______________________
*Maria Roda L. Cisnero writes about the study conducted by the IP Cluster of the Alternative Law
Groups (ALG) on Indigenous Dispute Resolution Mechanisms and their interface with the national
justice system. As the Research Coordinator of the study, she provides a preview of the cluster’s
research findings, with the guidance of the Legal Assistance Center for Indigenous Filipinos (PANLIPI).
The article is a fusion of the case studies written by the members of ALG IP Cluster, insights shared
during the conduct of the research, initial analysis of the research and the writer’s reflections. This
article serves as the main document for the continuing internal discussion of the ALG on the matter.
Please email: info@alternativelawgroups.org for your comments and suggestions.
1
Names of Respondents withheld upon request.
2
An improvised shotgun
3
Council of Elders
4
The tribal name "Mandaya" is derived from the Mandaya word "man" meaning "first", and "daya"
meaning "upstream" or "upper portion of a river”. The name therefore means "the first people
upstream". The term refers to a number of groups found along the mountain ranges of Davao
Oriental; it also refers to their customs, language, and beliefs. The Mandaya are also found in the
municipalities of Compostela and New Bataan in Compostela Valley Province as well as other areas
all over the entire Davao Oriental Province.
92 Indigenous Mode of Dispute Resolution
5
Metro Baguio Tribal Elders and Leaders Assembly see forthcoming discussion in this article.
6
Augusto B. Gatmaytan, Change and the Divided Community, 10 PHIL. NAT. RES. L.J. 1 (2000) 47
7
Ibid.
Indigenous Mode of Dispute Resolution 93
The specific goals of the project were to: (1) Undertake review and
legal research of relevant legal instruments and related literature on
existing indigenous and Moro dispute resolution mechanisms; (2)
Provide substantive and qualitative documentation through one-shot
case studies, at the community level, of existing IDRM; and (3)
Undertake analysis of gathered data, focusing on areas of conflicts on
IDRM, as practiced, vis-à-vis the wider divide of indigenous justice,
versus the formal justice system.
94 Indigenous Mode of Dispute Resolution
Another limitation of the study is that the focus areas for the case
studies were randomly selected. The study covered IP
8
See Secs 15, 3(f), see also AO 1, Rule IV Sec 4. Section 3(f) provides that Customary Laws refer to a
body of written and/or unwritten rules, usages, customs and practices traditionally and continually
recognized, accepted and observed by respective ICCs/IPs.
9
This study includes two ethnolinguistic groups, Iranun and Teduray Labangian of the Province of
Shariff Kabunsuan of the ARMM.
Indigenous Mode of Dispute Resolution 95
Conceptual Framework
The end of the twentieth century witnessed a global call for the rule
of law and the reform of the judicial systems in many countries of the
world. Multilateral financial agencies and international aid non-
government organizations (NGOs) made such changes one of their
priorities for their efforts in the developing world. In most countries
across the developing world, profound legal and judicial reforms
were implemented (Santos: 2002:313-52). 10
10
See also Tate and Vallinder (1995).
11
See Justice Reform Initiatives Support Project (JURIS).
12
See ALG Framework for Judicial Reform.
http://www.alternativelawgroups.org/resources.asp?sec=det&id=170
http://www.alternativelawgroups.org/resources.asp?sec=det&id=169
13
Drafted at the early stages of ALG’s involvement in the project, even the formulation of this key
reform issue comes from the framework that mainly “focuses on the official legal and judicial system,
conceived as a unified system, and left out of this consideration the multiplicity of unofficial legal
orderings and indigenous dispute resolution mechanisms and justice systems that had long co-existed
with the official systems many dating back the pre-conquest period.” See also SANTOS 2002.
98 Indigenous Mode of Dispute Resolution
The study then moves to validate the observation that IDRM and
indigenous legal and justice systems continue to endure in varying
degrees. This portion also explores the various aspects of
accommodations made in resolving conflict alongside IDRM, and the
national legal system. This chapter will highlight several case studies
illustrating varying degrees of interface.
The final part of the paper will attempt to identify formulations that
will address the most urgent need of providing more meaningful
recognition of IDRM and indigenous justice systems. The greatest
challenge at this point is accurately capturing and contextualizing the
demands gathered from the indigenous peoples who participated in
the focus group discussions (FGDs) vis-à-vis the comments and
reminders made by several specialists consulted, and the realities of
policy advocacy. It concludes by seeking ways of moving forward
towards a culturally-sensitive judicial response to the quest for the
recognition of the IDRM and the indigenous justice systems.
Indigenous Mode of Dispute Resolution 99
Over a span of three and a half centuries, Lynch noted that subjugated
Filipinos learned to disdain their cultural heritage and to imitate their
colonial masters. The best and most willing imitators were rewarded
with power and privilege. Meanwhile, native traditions and legal
systems slowly withered. Lynch further pointed out that unlike their
14
Jura Regalia literally translates to “royal rights” from the word jura meaning rights and regalia or
royal. The western definition of jura regalia refers to those rights which a king or queen has, by
virtue of his or her prerogative. In Philippine jurisdiction, jura regalia refers to the feudal theory
introduced by Spain that all lands belonged to the Crown. Regalia comes from the Latin word rex,
which means king. Regalian Doctrine, See also 1987 PHILIPPINE CONSTITUTION Sec 2, Art XII.
15
The Bangsa Moro struggle for self-determination is an ongoing struggle for survival, cultural identity
and the right to self-determination. Spanish aggression did not subjugate the Moro people who
remained determined to resist any colonial rule in their homeland.
100 Indigenous Mode of Dispute Resolution
While the Supreme Court in the case of Cruz vs. NCIP 18 , has upheld
the constitutionality of the IPRA, the judicial doctrine in relation to
indigenous peoples with more lasting impressions are those in the
cases of Rubi vs. Provincial Board 19 and People vs. Cayat 20 .
In Rubi vs. Provincial Board, the High Court declared through Justice
George Malcolm that:
In this case, the Court, speaking from the point of view of the State’s
exercise of police power, justified the Resolution of the Provincial
Board of Mindoro - placing the indigenous inhabitants in a
reservation - as a form of protection and introduction of civilized
customs to the “non-Christian” Manguianes. The High Court
considered the action of the Board as a valid act of the State, as the
indigenous peoples were considered unable to attend to themselves
due to ignorance and being uncivilized.
16
An observation affirmed by this study. The full research covers two case studies of indigenous justice
systems within the Autonomous Region in Muslim Mindanao. See also, case studies of Teduray and
Lambangian in Upi, Shariff Kabunsuan, as well as Barira and Buldon of the same province.
17
The terms used by the Spanish conquistadores
18
347 SCRA 128 (2000)
19
39 Phil 660, G.R. No. 14078 (1919)
20
68 Phil 12 (1939)
Indigenous Mode of Dispute Resolution 101
24
See Art.I, Sec. 22 of the 1987 Philippine Constitution.
25
See Art.XII, Sec.5 of the 1987 Philippine Constitution.
26
See Art.XIV, Sec.17 of the 1987 Philippine Constitution.
27
See Sec 399, 408 of RA 7160.
28
See Sec 412 (c) of RA 7160.
Indigenous Mode of Dispute Resolution 103
In IDRM, the process and its name speak for itself. Kalamian
Tagbanuas call it pagkeresen which roughly translates to
conversation/discussion/talk. The Kankanaey and Bago peoples of
Bakun call it Tongtong which when translated refers to a dialogue.
The Teduray Lambangian refers to the process as setiyawan meaning
to adjudicate together. 31 For the IDMR/IJS, the process, by any other
29
See Sec 65 RA 7381.
30
See Art. VIII, Sec 19 of RA 9054.
31
There are also many existing indigenous justice systems that have no formal or common names but are
still very much in place and in use. Pagkeresen among the Tagbanuas of Coron in Palawan, Husay
among the Higaonons and Talaandigs of Misamis Oriental and Bukidnon, Kukuman among the
Manobos of Arakan Valley, Iskukom among the T’bolis of Lake Sebu, Tiwayan among the Tedurays
of Maguindanoa and Gukom among the Subanons of Zamboanga.
104 Indigenous Mode of Dispute Resolution
32
Claveria, Misamis Oriental
33
A Timuay may endorse a case to the Gukom. A Gulang Gukom (chief justice) then convenes the
Timuays of the seven rivers. The pangimuan is conducted by a Gukom before the process starts.
34
Bakun, Benguet
35
True for both Bakun, Benguet and the tongtongs mediated by the Metro Baguio Tribal Elders and
Leaders Assembly.
36
Upi, Shariff Kabunsuan
Indigenous Mode of Dispute Resolution 105
There are also IDRM where settlement agreements are not only
sealed by prayers but with ceremonials gatherings. For the Iranun 38
of Barira and Buldon, Shariff Kabunsuan, when parties to the conflict
are able to reach an agreement or amicable settlement, there are
prayers and ceremonial gatherings to seal the agreement and celebrate
the reconciliation. The different gatherings common among the
Iranun include: kapangangawid, kapapamanikan, and kandori.
Kapangangawid involves the payment of moral, physical and
material damages to the offended party while kapapamanikan
requires family members and close relatives of the offending party to
go to the house of the offended party as a manifestation of acceptance
of guilt or submission to appease the offended party and his/her
relatives. In both gatherings, kandori, which is a thanksgiving ritual
involving the serving of food and drinks, may be performed; it may
also be held separately from the kapangangawid and kapapamanikan.
37
The study documented the Indigenous Dispute Resolution Mechanisms and Indigenous Justice System
of three ethno-linguistic groups namely, Tagabuhid, Alangan and Ragatnon.
38
Although largely based on Iranun customary laws and traditions, the local government unit and its
system of governance is also a factor in the administration of justice by the JUMPOC. This is evident
in the many similarities between the Katarungang Pambarangay system and the conflict resolution
process of the JUMPOC, as mentioned above. This may be explained by the fact that the JUMPOC
was created through the initiative of the local government unit. Another undeniable source of
influence is the Muslim faith which is central in the Iranun culture.
106 Indigenous Mode of Dispute Resolution
39
The Kefedewans are the administrators of the Tiwayan or the conflict settlement process or tribal
judicial procedure.
40
It is forbidden for any of the parties to reveal the details of the settlement. There will be a fine of
P1,500.00 imposed on those who will violate the confidential nature of said proceedings.
41
Of the 18 IDR/IJS case studies, three focus areas mentioned the exclusive use of the tribal house.
These are Gubatnon, Manobo and Subanon.
42
The barangay hall is also becoming the preferred venue for the Talaandig and Higaonon.
Indigenous Mode of Dispute Resolution 107
This study is very conscious and careful of falling into the trap of
overly generalizing observations and findings from the gathered data.
But for purposes of emphasizing a trend worth noting, 14 of 18
IDRM/IJS documented case studies heavily hinges the notion and
concept of justice to the restoration of peace and harmony within and
amongst communities. Justice is equated to concepts like peace,
harmony, contentment, order and common good.
The study also notes that there are IDRM/IJS that anchors their sense
of justice on the protection of one’s dignity and alleviation of the
injury caused to the victims and their families. 43 The Karulanons of
Negros on the other hand, value the sense of satisfaction and
contentment of both parties, while the Kalamian Tagbanwas of Coron
tend to link their sense of justice to retribution, punishment and
reward.
Then and now, the main purpose of IJS has been the maintenance of
stability, peace and harmony in the community. To this date despite
the challenges, the various IDRM/IJS covered still serves its purpose
43
Mandaya and Mansaka of Compostela Valley
44
Good state of mind
45
See Section 1, Article I, Chapter I, Ukit.
46
Baruwat = Form of appeal
47
The Highest Tribunal of the Subanon in Siocon, Zamboanga. This Gukom convenes only when the
matters to be settled involve disputes which are of general interest to the Subanons. Also, when the
Timuay of a pigbogolalan endorses a case to the Gukom of Seven Rivers because he knows that he
cannot settle the controversy/conflict
within his jurisdiction. Further, the Gukom will lead the settlement when it involves conflict between
Timuays of different pigbogolalan.
108 Indigenous Mode of Dispute Resolution
– justice is still served - for the peoples who resort to it and their
communities.
This observation is true for all the focus areas except one. For the
Manobos of Arakan Valley, any offense committed against an
individual is an offense committed solely against the offended party.
Committing acts of discrimination (oson) against any tribe member is
the only crime they consider as having been committed against the
whole tribe. 48
48
Refers to remarks or actions made either by a Manobo to another Manobo member or a non-IP to a
Manobo that caused embarrassment to the offended. Based on customary law, the offended party, if
not appeased, can kill the offender. The resolution process, therefore, concentrates on discussing the
appropriate penalty to avoid any killing. An example of this case involves a former City Councilor of
Kidapawan who was quoted in writing by a columnist of a local paper uttering discriminatory remarks
against the tribe during the last elections. The tribe filed a case with the NCIP against the City
Councilor and the local journalist, and moved for the application of customary law in the resolution of
the case. The NCIP upheld the motion in its entirety.
Indigenous Mode of Dispute Resolution 109
49
As narrated to PBPF in the FGD conducted for Mandaya and Mansaka. This observation is also true
for almost all other focus areas except as listed and discussed above.
50
Anhtropologist Antoon Postma who is known to have extensively studied the culture of the Hanunuo
tribe in Oriental Mindoro came up with a four-volume publication entitled Kulturang Mangyan in
2005. In the fourth volume, he wrote about the Hanunuo’s justice system and listed 164 offenses or
crimes punishable under the tribe’s customary law. Such offenses cover all sorts of behavior that
pertain to conduct of relationship with family members, relatives, neighbors and tribal leaders. They
range from petty to serious offenses like rape and murder.
All three tribes confirmed Postma’s listing. One of the FGD participants even said that he did not
realize that they had such a long list.
51
Dowoy: Teduray and Lambangian penal laws. Over time, there have been certain adjustments made in
the Dowoy, especially in the area of penalties imposed. These penalties traditionally took the form of
the giving of goods (e.g. gong, sundang) to the aggrieved party. However, since most of these goods
are now rather hard to find, the penalties were converted to cash equivalents. For example, the
equivalent of Mérémoto Tamuk ranges from P3,000.00 and above; while for Séékét, it is set below
P3,000.00.
52
In the case of the Teduray Lambangian the offenses, penalty and sanctions where documented over
time in their efforts to strengthen Timuay Justice and Governance. In partnership with support groups
and non-government organizations, a project dubbed as Community Access to Justice through
Recognition of Indigenous Justice System was launched. This initiative resulted in the documentation
of the Timuay Justice and Governance, with a Kefedewan Training Module and Handbook.
110 Indigenous Mode of Dispute Resolution
The study encountered two focus areas that have not abolished the
penalty in the sense that it is still there, but it has not been imposed
for a very long time. 53 There were also areas that are careful not
discuss it, in view of the sanctity of the process. Suffice it to say that
the few focus areas concerned observe several internal processes
53
“Bubuwan” for the Subanon means a cage. This is similar to a fish cage put in the sea used to trap fish.
The culprits, as in the case of incest, will both be placed in the bubuwan and before sunrise they will
be brought to the sea and submerged to death. This death execution happened once in the history of
the Subanons in the person of Tumonglon and Putian. This was an incest case. Both of them were
found guilty and they were subjected to death by drowning through bubuwan. As narrated by Timuay
Nanding for the case study.
Indigenous Mode of Dispute Resolution 111
Let it be emphasized that the penalties described were part of the data
gathered from the study and there is no attempt on the part of the
54
The execution of an offender who has committed a crime considered heinous by the
Mandaya/Mansaka communities is considered the highest form of restitution for crimes committed
against life and dignity. The execution of an offender and all other sanctions are not viewed as a
punishment for an offense/crime committed. From their perspective, it is a matter of “giving back
what is wrongfully taken”. Under this principle, the family of the offender/s has to give its consent to
give as restitution for a wrongfully taken life, the life of a member of the family who seriously
committed an offense. However, the family of the offender has recourse in the administration of
Mandaya/Mnsaka traditional justice through an appeal mechanism that exists to seek a reversal of
judgment. This can be granted but only given the following circumstances: (1) When the offender
shows sincere remorse for the crime/s committed; and (2) When the offender, upon evaluation and
judgment of the Limpong ng Mangkatadong, shows a possibility for transformation. Reversing an
execution judgment is not seen as a move to lower the sanction for a particular serious crime. Rather,
it happens only as shown above - when a person is willing to begin life anew by undergoing a process
of remorse and transformation. In the eyes of the Limpong, this, in a sense, allows the offender to give
back what he has taken.
55
See Sec. 72 of IPRA, IR
56
Bordon and Panglao are part of the penalty system of the Calamian Tagbanuas of Coron, Palawan.
57
In Banuang Daan and Cabugao, the offender is made to squat with a two-foot bamboo pole resting at
the back of his knees to attract ants. A more benign but no less humiliating form of panglao is
practiced in other villages such as Malawig, Buenavista and Tara. Here, the offender’s feet are
separated by a wooden clamp and he is made to squat for several hours.
112 Indigenous Mode of Dispute Resolution
Areas of Interface
58
Datu Veloso Suhat served as one of the key informants in the conduct of the research amongst the
Manobo in Arakan Valley.
59
See discussion on the two perspectives on dealing with legal pluralism in Anne Griffith’s Customary
Law in a Transnational World: Legal Pluralism Revisited for Conference on Customary Law in
Polynesia, 12th October, 2004.
60
The theory of legal pluralism “has become a major theme in socio-legal studies. However, under this
very broad denomination, one can identify many different trends which share little but the very basic
idea that law is much more than state law.”
Indigenous Mode of Dispute Resolution 113
61
Santos Boaventura de Sousa as quoted in Raquel Yrigoyen Fajardo, Pathways to Justice, http:
alertanet.org
62
Pitog vs. People G.R. # 76593, 11 October 1990
63
This particular type of interface was observed among the Calamian Tagbanua, Higaonon, Bukidnon,
Karulanon, Talandig, Teduray-Lambangian and Subanons.
114 Indigenous Mode of Dispute Resolution
The case of the Mandayas in Caragan Valley is a case where the BJS
in place is fully interfaced with the Mandaya’s IDRM/IJS. Although,
in a sense it would be more accurate to say that the Mandaya’s
IDRM/IJS subsumed the BJS, since all disputes brought to the
barangays are referred to the Limpong ng Mangkatadong, who are
likewise members of the Lupong Tagapamayapa. Despite the dual
role, the Limpong/Lupon applies their customary law and nothing
else. 64
The T’boli and Ubo of Lake Sebu have their own unique way of
interfacing. The mix allows them to settle disputes using their own
customary law while acknowledging the presence of a government
structure in their area. Aside from adopting the recording and
reporting requirements of the BJS, the tribal council submits a report
to the Lupon. The Lupon simply approves and files the report. In
Bakun, five of the seven 65 barangays instituted a process where every
complainant is required to register or file his/her case to the Lupon.
After registration, the complainant is asked to choose between BJS
and tongtong as the means for resolving the case. This arrangement
was borne out of the need to diffuse tensions between the conflicting
systems. Initially, in the early part of the BJS implementation, some
of those appointed as members of the Lupon were elders. These
elders, however, felt uncomfortable with such designation because
they were stripped of the voice of a moralist that they assume when
they act as mediators in the tongtong process.
Another set up was tested, this time Lupon members participate in the
tongtong as representatives of the BJS. Sometimes a Lupon member
presides over the tongtong and the resolution process is counted as an
accomplishment of the Lupon. This created confusion and
discomfort between Lupon members and members of the council of
elders. The confusion ended with the current set up. 66
64
See also the Tale of Two Valleys, case study PBPF. The prevalent use of traditional mediation/dispute
resolution processes in the context of the Barangay justice system principally stems from the
community’s familiarity with customary practices. This is a natural tendency, considering the fact
that residents of the area are dominantly IP (Mandaya). The elders view the primacy of traditional
processes not as an interface of two mechanisms, but as a recognition of the tribe’s collective rights to
self-governance and cultural integrity.
65
The two remaining villages, Brgy. Ampusunga and Dalipey, decided to marry the tongtong and the
BJS.
66
Parties to the agreement can choose not to have the settlement of their case documented so that no
record or proof of the wrongdoing exists. As earlier discussed, any record of a wrongdoing is a stigma
that will forever be attached to the family of the offender.
Indigenous Mode of Dispute Resolution 115
67
The JUMPOC of Barira and Buldon, Shariff Kabunsuan are surviving offshoots of a 1996 provincial
government mandate to create a Task Force Kalilintad in every municipality. Aside from being a
conflict resolution body, JUMPOC primarily aims to propagate Islamic teachings and peace. The
council likewise conducts Arabic writing lessons while it works to promote and preserve Iranun
Indigenous culture.
68
The collection of traditions and sayings of the Prophet Muhammad
116 Indigenous Mode of Dispute Resolution
71
As narrated by MBETELA members for the Baguio Case Study.
72
In Arakan Valley, when a non-IP is involved in a case, the complainant decides where to bring the
case for settlement. The Manobo always prefer to bring the case to the tribal court for settlement.
Cases of land dispute brought to the BJS or to the Department of Agrarian Reform (DAR) for
settlement, usually by a non-IP, are sent back to the tribal court for application of customary law.
73
In the case of the Mandayas, the members of the Limpong ng Mangkatadong are also members of the
Lupong Tagapamayapa. The Limpong in their dual capacity as Lupon by default employ their
traditional disputes processes and mechanisms. The Barangay Captains of the two areas are both
Mangkatadong and are considered by the community members as part of the Limpong. The elders
view the primacy of traditional processes not as an interface of two mechanisms but as recognition of
the tribe’s collective rights to self-governance and cultural integrity.
74
From December 12,-15 2007 the Gukom of the Seven Rivers was specially convened. For the first
time in their history twenty-three cases from Subanon and non-IP complainants against the Toronto
Ventures Inc, a multinational mining firm and SCAAs, were heard. The dates for the hearing were set
as early as the 2nd week of September 2007. Notices were duly sent to the proper parties. TVI
acknowledged the notice through a letter from the President of the Company. Following a resolution
from the NCIP, they refused to recognize the authority of the Gukom of the Seven Rivers. Following
the Subanon customary law, the Gukom proceeded with the hearing as scheduled. The notice
requirement after all was complied with. After four straight days of ascertaining days of hearing and
trying the complaints, judgment was rendered. The execution thereof was however held.
118 Indigenous Mode of Dispute Resolution
IPRA clearly provides for the primacy of customary law. The law
mandates that disputes involving indigenous peoples are to be settled
using customary law and practices. There are, however, certain
provisions 76 that tend to say otherwise. Section 63 states that
customary laws, traditions and practices of the ICCs/IPs of the land
where the conflict arises shall be applied first with respect to property
rights, claims and ownerships, hereditary succession and settlement
of land disputes. The provision as stated tends to give an impression
that customary law is applicable only in conflicts arising from
property rights, claims and ownerships, hereditary succession and
settlement of land disputes. 77 Even Section 15 comes with a
drawback provision by indicating that conflict resolution institutions,
peace-building processes or mechanisms and other customary laws
and practices may be used, but only within their respective
communities, and as may be compatible with the national legal
system. A proviso mandating that the IDRM/IJS be compatible with
the national legal system is very constricting. It is a mandate even a
tad more stringent than being within the framework of national
development. Although IP rights advocates insist that any doubt
should be ruled in favor of the IP/ICCs, this ambiguity may be subject
to abuse by limiting the application of customary law.
75
See Sec 412 (c) RA 7160, see also Secs 399 (f) and 408. See also Sec 407 (c) Muslim Mindanao
Autonomy Act No. 25. (MMAA No. 25). MMAA No. 25, is the regional local government code of
the ARMM.
76
See Secs. 29, 63, 66, 72 of RA 8371.
77
See also, RULE IX Section 1: Primacy of Customary Law. All conflicts related to ancestral domains
and lands, involving ICC/IPs, such as, but not limited to, conflicting claims and boundary disputes,
shall be resolved by the concerned parties through the application of customary laws in the area where
the disputed ancestral domain or land is located.
Indigenous Mode of Dispute Resolution 119
In a research forum conducted in Davao City for the study, Bro. Karl
Gaspar 79 used the Theory of Communicative Action to synthesize
and thereby understand the process that led to the current interface
and interaction between the unitary national justice system and the
indigenous justice systems.
78
An observation attributed to the case study.
79
Bro. Karl Gaspar is a prominent Davao based socio-anthropologist who has written several studies on
Indigenous Peoples and Moro in Mindanao, examples of which are: The Lumad’s Struggle in the Face
of Globalization (2000) and the Mindanao Lumad Social Movement (1990).
120 Indigenous Mode of Dispute Resolution
The lifeworld "gets cut down more and more to one subsystem
among others". 82 In this case, the indigenous lifeworld survives, but
has become colonized by the system. The uncoupling of the system is
best illustrated through the various negotiated and fragile interface
embedded, at times with acknowledged or unacknowledged tension
between the competing justice systems. However, “it would be
wrong,” Habermas claims, “to simply condemn this uncoupling.”
Here lies the challenge. Given the state of IDRM/IJS and granting
that the nation-state is increasingly looking into more pluralist
approaches particularly in the interest of justice reform and access to
justice, there is a need for "the actors to seek to reach an
understanding about the action situation and their plans of action in
order to coordinate their actions by way of agreement.” 83
80
Jürgen Habermas’s writings are widely acclaimed among the major contributions to the theoretical
understanding of contemporary society, specifically his legal theory, which has, in recent years,
become a topic of growing scholarly attention. With his two-volume work The Theory of
Communicative Action (1984, 1987a), Habermas has undoubtedly formulated an innovative and
influential theory of society.
81
Roger E. Bolton, Habermas Theory of Communicative Action and the Theory of Social Capital,
http://www.williams.edu/Economics/papers/Habermas.pdf (March 22, 2008).
82
Jürgen Habermas, The Theory of Communicative Action,Volume 2, System and Lifeworld: A Critique of
Functionalist Reason, p. 154.
83
Jürgen Habermas as quoted in Stefan Szczelkun Summary of the Theory of Communicative Action,
http://www.csudh.edu/dearhabermas/publsbm01.htm (March 22, 2008).
Indigenous Mode of Dispute Resolution 121
The existing justice systems are worlds apart and only through
methods inspired by communicative action can these divergent
systems slowly begin to work towards a common understanding,
without necessarily subsuming the other. Without communicative
action, it would be difficult, if not impossible, to appreciate one of the
most common clamors made by the respondents and interviewees –
the call for a more meaningful recognition of indigenous justice
systems.
Recommendations
84
Special jurisdiction includes all of the powers of any jurisdiction: Notio, Iudicium, Imperium or
Coercio. That is, the authority to review relevant issues, including operative functions such as calling
witnesses, collecting evidence (Notio); the ability to resolve relevant issues using its own law
(Iudicium), and, finally, the ability to use force to render effective its decisions when necessary. This
includes actions that may restrain rights, such as executing detentions or demanding payment or labor.
(Coercio or Imperium)
122 Indigenous Mode of Dispute Resolution
85
Perfecto V. Fernandez, Towards a Definition of National Policy on Recognition of Ethnic Law Within
the Philippine Legal Order, PHILIPPINE LAW JOURNAL 55:4, pp. 383-393.
86
For the preferred Sector, recognition would clearly be in the national interest; hence, the norms
coming within such Sector must enjoy priority in operation. Matters involving members of the same
cultural community, which come within the purview of such sector, shall be subject thereto without
qualification. Thus, the norms of such Sector are accorded Mandatory Jurisdiction. This means simply
application without exception.
87
For the Acceptable Sector, which can cause no substantial harm to national interest, the norms have
immediate public permissive application, in that through common consent, the parties thereto, may
choose or elect to be governed by the national law, in lieu of such applicable ethnic law. In other
words, the norms in the Acceptable Sector are of immediate application, and will apply unless the
parties exercise the above stated option. Thus, the norms of such Sector are accorded Primary
Jurisdiction, which the parties may avoid, however, by electing to come under the national law.
88
For the Neutral Sector, which can cause minimal harm to the national interest, the law of immediate
application shall be the national law, but because the harm is only minimal, hence tolerable, the
parties are allowed to elect or choose the applicable norms of such Sector to their dispute. Thus, the
norms therein are Permissive of Elective Jurisdiction, because they can apply only upon specific
request of the parties concerned.
89
For the Unacceptable Sector, the substantial harm to national interests that they can cause, places them
beyond the outer limit or boundary mentioned above. Instead of recognition, the response must be
negative, ranging from denial of recognition by declaring either the parties themselves invalid, or the
outcome of their operation invalid, or both, to repression through criminal prohibition of what such
norms may allow or recognize.
90
Gatmaytan, Change and the Divided Community p. 46.
Indigenous Mode of Dispute Resolution 123
of the NJS. The many varied IDRM/IJS systems and procedures are
still valued as sacred by many. It is still preferred by the peoples and
communities that struggle to preserve it mainly because of these
features:
Another space that needs more room for accommodation is the call
for the recognition of the primary jurisdiction of IDRM/IJS vis-à-vis
BJS. As recommended by leaders of BITO 93 :
While IPRA upholds the primacy of customary law, there are other
provisions that create ambiguity, showing the need for an
interpretation. Thus, although IPRA provides that “where the dispute
could not be resolved through customary law, it shall be heard and
adjudicated in accordance with the Rules on Pleadings, Practice and
Procedures before the NCIP” 96 , the prevailing notion is that a conflict
that is not resolved through IDRM/IJS should be referred to BJS.
Thus, the tension between IJS and BJS is the most common of the
interfaces documented. And while there are existing negotiated
91
Raquel Yrigoyen Fajardo, Legal Pluralism, Indigenous Law and the Special Jurisdiction in the
Andean Countries, Beyond Law No. 27 as emailed to author October 10, 2007.
92
Art. XIV, Sec, 17, 1987 Philippine Constitution
93
Bakun Indigenous Tribal Organization, Bakun, Benguet
94
Validation Interview conducted at Brgy. Ampusungan, Bakun, Benguet.
95
Calamian-Tagbanua, Higaonon, Bukidnon, Karul-anon, Talaandig, Bakun, Tagabuhid, Alangan,
Ragatnon
96
See Rule IX Sec 1 Par 2, AO 1 Series of 1998.
Indigenous Mode of Dispute Resolution 125
REFERENCES
Arquiza, Yasmin D.
2005 “The Tongtong as A Model for Conflict Resolution,” A
Journey of Hope Implementing the Indigenous Peoples Rights Act
of the Philippines Volume 3, The Road to Self-Governance. Manila,
International Labour Office, 2005.
Barton, Roy F.
1969 Ifugao Law, Berkeley, Los Angeles: University of
California
1949 The Kalingas: Their Institutions and Custom Law. Chicago:
University of Chicago.
Fajardo, Raquel Y.
_______ Legal Pluralism, Indigenous Law and the Special
Jurisdiction in Andean Countries,
http://www.themastering.com/www_edit/upload/cades/courses/050
301/
RYF-legalPluralism-BeyondLaw27-5.pdf.
Fernadez, Perfecto V.
1980 “Towards a Definition of National Policy Recognition of
Ethnic Law Within the Philippine Legal Order,” Philippine Law
Journal 55:4, pp. 383-393.
126 Indigenous Mode of Dispute Resolution
Gatmaytan, Augusto B.
1992 “Land Rights and Land Tenure Situation of Indigenous
Peoples in the Philippines,” Philippine Natural Resources Law
Journal 5:1, pp. 5-41.
Habermas, Jürgen
1987a The Theory of Communicative Action,Volume 2, System and
Lifeworld: A Critique of Functionalist Reason. Boston, MA:
Beacon Press.
Lynch, Owen J.
Other Materials
Primer on JURIS
http://www.alternativelawgroups.org/resources.asp?sec=det&id=170
Bolton, Roger E.
Habermas Theory of Communicative Action and the Theory of
Social Capital,
http://www.williams.edu/Economics/papers/Habermas.pdf
(March 22, 2008).
Griffiths, Anne
Customary Law in a Transitional World: Legal Pluralism Revisted
for Conference on Customary Law in Polenesia, 12th October, 2004.
Anne.Griffiths@ed.ac.uk
Humiding, Jennifer P.
1998 Interfacing National Law and Customary :aw at the
Barangay Level: Limitations of the State Imposed Barangay Justice
System in Indigenous Communities. A Thesis Submitted to the
Faculty of the College of Law, Ateneo de Manila Univeristy.
Szczelkun, Stefan
Summary of the Theory of Communicative Action,
http://www.csudh.edu/dearhabermas/publsbm01.htm (March
22, 2008).
128 Indigenous Mode of Dispute Resolution
Legal Materials
Constitution
1987 Constitution of the Republic of the Philippines.
Legislation
Republic Act No. 8371 (The Indigenous Peoples Rights Act), 1997.
Republic Act No. 9054 (Expanded Organic Act for the Autonomous Region
in Muslim Mindanao),
Republic Act No. 7160 (Local Government Code), 1991.
1
A paper prepared by Atty. Eleanor C. Conda, National Judicial Institute/JURIS Gender Equality
Adviser. 21 June 2008.
130 Gender and Mediation
CAM has the following elements and principles that are drawn from
the design and practice:
The GAD Plan of the judiciary thereby supports and promotes the
Supreme Court’s Action Program for Judicial Reforms (APJR) in
particular its Access to Justice 2 component. This component aims to:
The 1987 Philippine Constitution declares that the State “values the
dignity of every human person and guarantees full respect for human
rights.” (Article II, Sec 11). Specific rights (almost all of which are
civil and political rights) are listed under the Bill of Rights.
Provisions pertaining to economic, social and cultural rights are
2
“Access” is defined in the APJR’s Supplement as the convenience (level of ease in physically reaching
the starting point of the service, and level of ease and speed in receiving the necessary service),
availability (presence of the service geographical proximity and accessibility), and affordability of
certain services in the justice system. Such services cover judicial services provided by the courts;
alternative dispute resolution (ADR) mechanisms, such as mediation or the katarungang barangay;
investigative, prosecutorial, and legal assistance services rendered by the Department of Justice and the
Department of the Interior and Local Government; legal or quasi-legal services provided by other
national government agencies, particularly to marginalized sectors; and other related services that
improve the capacity of individuals to access the justice system, such as information and education.
(Underscoring provided.)
132 Gender and Mediation
3
In the Philippines, customary norms and general principles of international law (including the
principles of equality and non-discrimination) are deemed incorporated into the domestic legal system
under Article II, section 2 of the Constitution. International human rights treaties, and other such
agreements, become part of Philippine law under the treaty clause of the Constitution (Article VII,
section 21).
4
See e.g. General Comment No. 31 [80] Nature of the General Legal Obligation Imposed on States
Parties to the Covenant : 26/05/2004. CCPR/C/21/Rev.1/Add.13. (General Comments), wherein the
Human Rights Committee reiterates that “(t) he obligations of the Covenant in general and article 2 in
particular are binding on every State Party as a whole. All branches of government (executive,
legislative and judicial), and other public or governmental authorities, at whatever level - national,
regional or local - are in a position to engage the responsibility of the State Party.”
5
Article 14 of the ICCPR, for example, states that “1. All persons shall be equal before the courts and
tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a
suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and
impartial tribunal established by law.” Although the provision contemplates adjudication in courts or
tribunals, the standards of “fairness,” “public hearing,” and “competent, independent and impartial
tribunal” that Article 14 sets can well refer to standards applicable to CAM.
Gender and Mediation 133
6
See ICCPR, Article 2 (1): “ 1. Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the
present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.” Also, (b) ICESCR, Article
2(2): “2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in
the present Covenant will be exercised without discrimination of any kind as to race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth or other status.”
6
See ICCPR, Article 3: The States Parties to the present Covenant undertake to ensure the equal right of
men and women to the enjoyment of all civil and political rights set forth in the present Covenant.
(Elaborated in general comment No. 28 Article 3: The equality of rights between men and women,
Sixty-eight Session (2000), in HRI/GEN/Rev. 6, p.179); Also, ICESCR, Article 3: The States Parties to
the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all
economic, social and cultural rights set forth in the present Covenant. (Elaborated in general comment N.
16, Article 3: the equal right of men and women to the enjoyment of all economic, social and cultural
rights, E/C.12/2005/3 13 May 2005.
134 Gender and Mediation
8
http://www.ncrfw.gov.ph/inside_pages/gender_mainstreaming/gender_101.htmlGender and Sex
136 Gender and Mediation
9
For more information on sex/gender, medical experiments and findings, and theories and perspectives,
see e.g. Newsweek, “The Truth about Gender,” updated October 18, 2007, at
http://www.newsweek.com/id/49232; Newsweek, “Rethinking Gender,” updated August 21, 2007, at
http://www.newsweek.com/id/34772. See also pertinent sections in e.g. Steven G. Smith, Gender
Thinking (Philadelphia, 1992); Anne C. Hermann and Abigail Stewart, eds. Theorizing Feminism,
Parallel Trends in the Humanities and Social Sciences, 2nd ed.( USA and UK, 2001); Stevi Jackson and
Jackie Jones, eds. Contemporary Feminist Theories, (USA, 1998); Mikkola, Mari, "Feminist
Perspectives on Sex and Gender", The Stanford Encyclopedia of Philosophy (Summer 2008 Edition),
Edward N. Zalta (ed.), forthcoming URL =
<http://plato.stanford.edu/archives/sum2008/entries/feminism-gender/>
138 Gender and Mediation
Adapting the diversity concept and the foregoing analysis onto the
examination of gender/contextual considerations in CAM leads to
asking questions like the following:
(i) Are there fora in which these collectivities and other stakeholders
including civil society groups are able to provide input into and
feedback on CAM design and program implementation?
140 Gender and Mediation
53% of the 492 litigants surveyed are female and 47% male. Majority
(83%) are married within the age range 29-48 (57%). Fifty one
percent (51%) reached college, (30%) reached high school, and
(12%) attained elementary education only. In terms of household
income the respondents are distributed into four major income
groups, P 7,800 and less (53%), P 7,800-18,000 (27%), P 18,000-
40,000 (11%) and P 40,000-above (9%). Those earning 7,800 and
less are considered the poorest (Class E) in income classification.
However, majority consider themselves home owners (56%) followed
by informal settlers (25%). Almost all of the litigants live in urban
areas (95%).
And the Report goes on to say that these disputants are “ most likely
the defendants in civil disputes or ejectment cases.” Based on this
profile, it concludes that CAM/JDR “(i)n a sense xx has made justice
10
Data used in this section are drawn from the following JURIS studies:
(a) Guillen, R. et al and Melanie P. Gan, ACCESS TO JUSTICE AND
EFFECTIVENESS OF ADR APPROACHES A research report by the JURIS
Project (August 2007) (hereafter the ADR Effectiveness study” or the Guillen
study 2000) ;
(b)Panga S. Jr, Parlade, C.V., Lopez Reyes, Melissa, Panga, M.S., RESEARCH ON JUDICIAL
DISPUTE RESOLUTION (JDR) AS AN ADR INNOVATION, Draft; (hereafter the “JDR study”
Panga, et al 2008);
(c) Womenlead Inc., The Gender Dimension of Mediation: Problems, Prospects and
Recommendations (hereafter the “Gender Dimension Research” or the Womenlead study); and,
(d) Social Weather Stations, Research on the Poor Accessing Justice and the ALGs as Justice Reform
Advocate. (hereafter the “ALG research” or the SWS study)
* The Most Significant Technique in Mediation Series and A Resource Guide on Gender for Mediators
and JDR Judges, both JURIS publications, are also sources of narrative data for this section and pertinent
non-JURIS materials.
Gender and Mediation 141
Narrative data shows that disputants are relieved after the resolution
of their conflict through CAM: “natapos din.” Compared with court
adjudication with delay and time factors, CAM does come out
understandably as a preferred option. Also defendants in BP 22/estafa
and other mediatable criminal cases may tilt toward a compromise
which may or may not be to their favor. Agreement to a possibly
unreasonable compromise agreement or one whose terms they could
not meet is by far a better prospect than imprisonment.
b) Mediatable Cases
The following are mediatable cases in the first and second level
courts:
(1.) All civil cases, settlement of estates, and cases covered by the
Rule on Summary Procedure, except those which by law may not be
compromised (e.g.,annulment of marriage).
(5.) Civil aspect of Estafa and Libel cases where damages are sought.
(A.M. No.0I-I0-5-SC-PHILJA, dated October 16, 200I. AM. No. 04-
2-04-SC, dated July 20, 2004 and effective August 16, 2004).
About 30 of the 73 cases were settled, and most of the cases I settled
involved housewives. In most of the cases wherein the co-borrower
was a male, the male would express anger and say something like
“Kung hindi ka lang babae, matagal ka nang pinulot sa …”(If you
were not a female, you would have been long killed). This may have
also meant that if the conspirator were a male, the conspirator would
have undergone some form of punishment by the male co-borrowers.
11
Conversation of this writer with Atty. Glenda Litong sometime in 2007.
12
Story No. 13.“ One versus a Conspiracy” Most Significant Technique (sic) in Mediation Series, JURIS
Project (February 2008).
Gender and Mediation 143
The rest of the 73 cases became back-to-court cases and would have
to go through JDR.
Many women assume gender roles within the family and economic
pressures have pushed many of them to be part of the informal
economy. The BP22 female defendants in the ADR study belong to
the middle class and are engaged in small to micro economic
enterprises. They do so most likely to support their families or
augment family income. The data above indicates that possible
heightened vulnerability of this group to the harsh impact of laws on
BP22/estafa. A more comprehensive study on mediatable cases
including BP22/Estafa and family law cases, from filing to CAM,
may be necessary in order to generate more understanding on
possible differential impact on different groups and individuals of
CAM-related neutral laws and guidelines.
13
Case Study on “Deal or No Deal,” (Guillen, et. al., 2007)
144 Gender and Mediation
14
Observation made by the CEDAW Committee. Concluding comments of the Committee on the
Elimination of Discrimination against Women: Philippines CEDAW/C/PHI/CO/6 25 August 2006
15
Goundry,S, .A., Peters, Y., Currie, R. etc , Family Mediation in Canada: Implications for Women’s
Equality A Review of the Literature and Analysis of Data from Four Publicly Funded Canadian
Mediation Programs, (Canada:1998) at http://www.swc-
cfc.gc.ca/pubs/pubspr/familymediation/familymediation_e.pdf; Maxwell, Nancy G., "The Feminist
Dilemma in Mediation" . International Review of Comparative Public Policy, Vol. 4, No. 1, pp. 67-84,
1992 Available at SSRN: http://ssrn.com/abstract=963192;
.
146 Gender and Mediation
16
NCRFW Factsheet Filipino Women Mar. 2008.
17
See e.g. Gerencser, Alison E., FAMILY MEDIATION: SCREENING FOR DOMESTIC ABUSE
at http://www.law.fsu.edu/Journals/lawreview/issues/231/gerencse.html
Gender and Mediation 147
The stories earlier of Flor, Mona and Marie show how their CAM
experience proved positive and empowering for the women. Women
certainly are not a homogenous group nor are men, as asserted in a
previous section. Neat or full-proof generalizations about capacities
and attributes of and effects of CAM proceedings on neither can be
easily made nor be accurate reflections of reality in individual
situations.
Individual/Family circumstances
Thirty four (34) percent of the respondents said that these problems
affected their willingness to compromise and (32%) said it affected
the final implementation of the agreement.
“ ‘That’s what they say about law, that all of us are equal
but we should be more lenient with women considering
that they are considered as the weaker sex.’ “
Narrative data shows that CAM and JDR practitioners are likely to
encounter situations that bring to fore the need for awareness of and
responsiveness to gender issues in CAM proceedings.
One mediator stressed that gender sensitivity is not only a matter of
being on the lookout for ‘gender based power imbalance’ but it also
involves catching yourself making these gendered assumptions. The
mediator shared that she used to believe the generalization that
Gender and Mediation 151
women are more talkative than men until she encountered a case
where the father wouldn’t even give his daughter the opportunity to
talk in a case which involved her as a party. (Womenlead 2008)
42% of those who perceive power imbalance in their dispute with the
other party agree that mediation helped in addressing the issue and
feel that the openness and informality of mediation largely helped in
neutralizing the inequality between parties. However, some also feel
that mediator should have exerted more effort in addressing the issue.
152 Gender and Mediation
The results reveal that while gender and the attitude of both
parties and the mediator. can structure power relations in
mediation, women disputants (are) likely to understand ‘power
relations’ during mediation in relation to the other mediation
party, the presence or absence of private counsel and the nature of
the case. For example, although mediators stated that women
disputants were not treated differently from men, mediators did
acknowledge that some parties have more difficulty than others
in expressing themselves and that this could be a factor of various
things such as ‘pride,’ ‘embarrassment,’ (especially in cases of
slander), ‘educational status,’ and ‘economic status,’ as well as
the ‘presence of legal counsel.’
Aside from relationship, other factors affecting mediation identified
by respondents in the Womenlead study are: educational attainment,
influence or ‘connections’ with influential and well known
personalities, and difference in economic situations. Another problem
is inability to hire private counsel. Respondents considered that not
having a lawyer has resulted in among others: their being forced to
agree with the Compromise Agreement, and in their being unable to
question the credibility of the judge’s decision on their case. For
them, the presence of counsel “ensure(s) that someone can defend
their case , give advice on their case, the other party is penalized
according to existing laws (6%), help in preparing their affidavits,
and, (3%) and help explain their rights.”
The open and informal setting of CAM accounts largely for the
perceived justness and fairness of the process
freely discuss their dispute with the other party. For the ADR users,
this facilitated not only the settlement of cases but also the mending
of relationships especially among neighbors involved in civil cases.
This, for them, is more preferable than formal court litigation where
counsels are the ones more directly engaged in the process than the
litigants. (Guillen 2007)
Perceptions of just and fair outcomes in CAM on the other hand was
linked by disputants to the settlement or non-settlement of their
disputes. The ADR study notes that
Mediation, for the three women, opened a way to assert and claim
their rights. Being able to speak openly and directly to the other party
was part of the process. For Flor, mediation opened a venue for her to
talk about her husband’s abuse and neglect. Through the mediation
process, her husband asked for forgiveness and a settlement was
reached. Flor was able to claim her rights and also that of her
children. For Marie, mediation softened the ground for the next step –
judicial dispute resolution – where her husband relented and agreed to
pay damages for the crime he committed. In both cases, the women
believe they have attained justice.
Myrna was sued by her neighbor for violating BP22. After four
mediation sessions, she and the other party did not reach a
compromise agreement and the mediator concluded the proceedings.
For Myrna,
The JDR study also found that JDR judges and the JDR process are
widely perceived to be fair, and stakeholders are satisfied with JDR
outcomes. 18
18
Perception of fairness of judges and the JDR process is very strong among all stakeholders groups
across all regions (Table 12). All the judges obviously believed in their neutrality and impartiality, and
the lawyers and litigants largely agreed, except for Baguio where litigants raised a serious question in
this regard with almost half expressing disagreement.
All stakeholders expressed satisfaction with the outcomes attained using JDR, although judges are the
most satisfied stakeholder group (with 96% agreeing or strongly agreeing that the outcomes are
satisfactory), followed by lawyers (88.5%) and then by litigants (85.7%). But support is not even across
all regions with litigants in Bacolod and Baguio expressing dissatisfaction (80.8% and 38.5%
respectively). (JDR study 2008)
Gender and Mediation 155
The ADR study found that 76% of survey respondents perceived that
CAM/JDR contributed to ordinary citizens/marginalized sectors’
access to justice. This figure markedly dropped to 27% however
when the question was CAM/JDR’s contribution to women’s access
to justice, and 59% of respondents said they are “not aware” of
whether or not CAM/JDR contributed to women’s rights. The ADR
research report concludes that this expressed unawareness could be
attributable to the disputants’ view that that these issues are not
related to their cases, e.g., reckless imprudence, partition, etc.
( 3) Implications
20
See e.g. Winslade, John M. Mediation with a focus on discursive positioning, October 2003. at
(Unpublished) http://narrative-mediation.crinfo.org/documents/mini-
grants/narrative_mediation/Mediation_with_a_Focus.pdf. Winslade argues in favor of social
constructionist perspective over the dominant problem solving mode. This perspective focuses on
“power relations and how they are constructed in discourse; ” discourse referring to the “process of
conversation, written and spoken, by which human beings trade in meanings.” It recognizes the politics
of control of meaning in mediation and how dominant discourses can be used to legitimate claims of
entitlement or to de-legitimatize others. He proposes narrative mediation whose goals are to: (a) a) create
the relational conditions for the growth of an alternative story; b) build a story of relationship that is
incompatible with the continuing dominance of the conflict; and c) open space for people to make shifts
in discursive positioning.
Gender and Mediation 157
These strategies all aim to ensure that CAM affirms and promotes
access to justice and the rights especially of those more
disadvantaged including the ‘invisible’ and minority groups or
collectivities.
5. Concluding Note
21
The Gender Dimension of ADR study notes as example that “(i)t is not enough for mediators to
undergo gender-sensitivity trainings, which in its present common form, do not go beyond discussing
gender-stereotyping and gender roles.” Resonant of the rights framework that this paper bats for, it
recommends that “ mediators should be trained on the rights-based approach, i.e., rights of litigants
during the different stages of the process are recognized; and their duty as state agents to protect and
promote these particular rights is affirmed.”
22
This relates to a recommendation of the JDR study that states as follows:
Clarification/modification of JDR guidelines - In order to enhance fairness in JDR outcome and
stakeholder satisfaction, we suggest the clarification, to be incorporated in JDR guidelines and in
training modules, of the judges’ role in JDR, with emphasis on (i) ensuring that appropriate time and
effort is spent at the start of the proceedings to carefully explain the nature and purpose of JDR; (ii)
timeliness and appropriateness of the use of particular approaches to resolve different situations, rather
than the use of a single approach or technique for all types of disputes; (iii) issues pertaining to power
imbalance identification and correction; and (iv) the role of counsel in JDR, i.e., whether the presence of
counsel is voluntary or mandatory, the extent to which the lawyer is expected to involve himself in the
client’s decision-making process, the extent of involvement of counsel in the various stages of the JDR
process, and similar issues. (JDR study 2008)
158 Gender and Mediation
23
Owen Fiss, Against Settlement, 93 YALE L.J. 1073, 1085 (1984) cited in Coben, James, GOLLUM,
MEET SME´AGOL:A SCHIZOPHRENIC RUMINATION ON MEDIATOR VALUES BEYOND
SELF-DETERMINATION
AND NEUTRALITY, at http://www.cocjr.org/vol5no2/CAC202.pdf
ABOUT THE AUTHORS
IMELDA D. GIDOR
CAROLYN A. MERCADO
Prior to joining the Foundation, Ms. Mercado was an intern with the
Center of International Environmental Law in Washington. She also
served consultancies in Manila for the World Bank, the United
Nations Development Programme, the International Maritime
Organization, NOVIB, and the Philippines’ Department of
Environment and Natural Resources. She has served as lecturer on
environmental law at Ateneo de Manila University, San Sebastian
College of Law, and the Development Academy of the Philippines.
She also served as Executive Director of the Developmental Legal
Assistance Center, Corporate Secretary of the Alternative Law
Groups, and as a legal aide to a member of the Philippine Senate.
DAMCELLE TORRES-CORTES
Atty. Panga is admitted to law practice in the Philippines and in New York.
Maria Roda L. Cisnero is a Legal Officer of the Legal Assistance Center for
Indigenous Filipinos (PANLIPI), a non-profit/non-governmental
organization established in 1985 which pioneers and continues to engage in
development work among indigenous peoples of the Philippines. PANLIPI
is one of the pioneer members of the Alternative Law Groups.
Concurrently, she is also the Local Action Researcher for the model courts
in Baguio/Benguet and La Union for the Justice Reform Initiatives Support
Project.
ELEANOR C. CONDA
She is currently the gender equality adviser of the JURIS Project, and
the human rights and legal specialist in a 4-country review of national
human rights institutes’ role in strengthening human rights protection
of domestic workers and migrant workers in irregular situation.
Books and papers that she has authored or co-authored are on themes
as human rights of women, framework for strengthened CEDAW
implementation, and gender-responsive lawmaking.
Eleanor finished her law degree in 1989 from the University of the
Philippines. She holds also degrees in Master in Business
Management from the Asian Institute of Management (1981) and in
Bachelor of Arts in Economics from the Divine Word College of
Legaspi (1978).
ANNEX
Cooperatives 7258536 – Legal Dept. Board Resolution No. 60, series 2006: Revised
Development Authority www.cda.gov.ph Procedures for Mediation and Conciliation at
(CDA) the Cooperative Level
www.dti.gov.ph
Dept. of Trade and Rule 10, DAO 7, Series 2006: Simplified
Industry (DTI) Uniform Procedure for Filing Cases with DTI
Housing and Land (02) 9243367 – Legal Resolution 802, series 2007: Amending Rules
Use Regulatory Board www.hlurb.gov.ph III & X of 2004 Rules of Procedure to
(HLURB) Incorporate Rules on Mediation
(02) 5328462 to 70
Insurance
Public Assistance and
Commission (IC)
Information Division
Office of the
Rules 10-12, Implementing Rules and
Government www.ogcc.gov.ph
regulation of the Office of the Government
Corporate Counsel
Corporate Counsel
(OGCC)
Presidential
(02) 4104691 – Legal
Commission for the
Ms. Belen Alansalon
Urban Poor (PCUP)