FAMILY MEDIATION FAMILY MEDIATION ACA NIMFA CUESTA VILCHES.
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Transcript of FAMILY MEDIATION FAMILY MEDIATION ACA NIMFA CUESTA VILCHES.
FAMILY MEDIATION
FAMILY MEDIATION
ACA NIMFA CUESTA VILCHESACA NIMFA CUESTA VILCHES
Setting The Stage :The Filipino Family
I . Pre - Hispanic Times : Pagans Or Mohammedans / Man Throws Spears At
Staircase Of Girl’s House To Marry / Parents Agree / Dowry Of Money, Gold, Food / Grandfather
Announces MarriageProperty of ACA Nimfa Cuesta-Vilches
II. Spanish Times ( 333 Years )
Families Patriarchal / Father Exercises
Authority / Children Polite To Elders With
Terms And Ways Of Addressing As Respect /
Opinions Of Elders , Grandparents Consulted / Older Siblings Respected
Property of ACA Nimfa Cuesta-Vilches
III . American Times ( Antithesis Of Past ) Individualism / Open
Parent - Child Relationship / Child Disregards Parents [Juvenile Delinquency] /
Family Authoritarian / Child Left With Domestic
Helper , Mothers Held Jobs / Materialism
Property of ACA Nimfa Cuesta-Vilches
The Emerging Filipino Family : 30% Poor - Live At P35 / Day ] / 40M Hungry / Prevalent 1 Parent Type -
OFW Parents / Mothers Work To Augment Income / Father Away Working Take Mistresses - Illegitimate Children / Child Left With Domestic Help / Religion
Becoming Less Important, Practiced In Homes Only ]
Population [2008]: 90 MillionNumber Of Families [2003] :
15, 269, 655Poverty Line : Income Below P11,000.00 Per Month / Child
Population Of People With Age Below 18 : 49.12% Are Girls
By 2005 : 17. 4 Million Girls Below 18 [Phil. 4th Exporter Of Prostituted
Children]Religion : Predominantly Christian [ Since 1521 ]
Family Setting : Filipinos Are Family - Oriented /
Life Centered On Family / Decision Made
Dependent On Approval Of Family /
Property of ACA Nimfa Cuesta-Vilches
Child , Children Live(s) With Family Unlimitedly /
Separation From Family Takes Longer As
Compared With Western Children / Child Willing To Live The Rest Of Life With Family Even After Having His , Her Own Property of ACA Nimfa Cuesta-Vilches
Family Customs : Faithfulness To Family Is Tradition [ No Booming
Businesses For Retirement Homes, Orphanages ] / Treat
Elders With Respect, DeferenceProperty of ACA Nimfa Cuesta-Vilches
Marriage : Still The Norm / Permanent Union Between Man And Woman Entered Into Accordance With Law
To Establish Conjugal, Family Life
Requirements : 18 Years Old / Legal Capacity /
Consent , Advise Of Parents
Presumption As To Validity Property of ACA Nimfa Cuesta-Vilches
IV. Stereotypes In The Filipino Family
(A) Father : Philippines Has A
Patriarchal Traditional Power
Structure(B) Father Expected
To Possess The Stronger
Personality Property of ACA Nimfa Cuesta-Vilches
©Role Is Reinforced By Law / Custom - Family Code
Provisions : When Spouses Disagree As To Management Of Absolute Community Of
Property Or Exercise Of Parental Authority - Decision Of Husband Prevails, Wife Sues In Court To Challenge /
Wife Uses Husband’s Surname
Adultery [ Revised Penal Code ] : Only Committed
By Wife If She Has Sexual Relations With A Man
Other Than Husband , But Husband Is Not Held Criminally Liable For
Adultery If He Has Sexual Relations With Another
Woman Not His WifeProperty of ACA Nimfa Cuesta-Vilches
Disputable Presumption Under Rules On Evidence: When Two Persons Die And Both Are Above 15 YO, Below 60 YO And The Sex Be Different, The Male Is Considered To
Have Survived [ Rule 131, Section 3, (JJ) (4) ]
In A Filipino Family : The Father Is Expected To Provide Money For The
Family / It Is A Requirement That The Father Obtains A Job
And Is Able To Attend To His Family’s Needs [ Being Jobless Is Most
Stressful To Male Person ]
Property of ACA Nimfa Cuesta-Vilches
Mother Or Wife : Known As “ Ilaw Ng Tahanan ” / Most Of The Time,
The Mother Is Expected To Guide Her Children As To What Is Right / She Has More Responsibilities In The
Filipino Family
Property of ACA Nimfa Cuesta-Vilches
Despite Two Women Presidents, There
Remains A Culture - Based Discrimination As
To Gender Within The Family, Society [Factor
In Resolving Family Disputes] / Women Even If Employed Outside Are Still Do All Household Work [ Invisible Work ]
Property of ACA Nimfa Cuesta-Vilches
Oftentimes , The Wife Is Perceived As Battered Or Is A Subservient Woman / Contemporary Filipino Wife : Most Are Away From Own Families And Children Working As Domestic Helpers,
Taking Care Of Children Of Other People Abroad
Property of ACA Nimfa Cuesta-Vilches
Migrant Workers’ Trend Strongly Contribute To
Disintegration Of Nuclear Family / Members Left
Behind Totally Dependent On Remittances, Not
Developing Their Own Life , Earning Skills
Other Embedded Traits : “Dangal, Hiya, Bayanihan, Damayan, Utang Na Loob”
Property of ACA Nimfa Cuesta-Vilches
Family Mediation : [PMC / JURIS] Court – Annexed [CAM] Process Part Of PTC, Where An Impartial Person / Judge During PTC In A Two Or Pairing - Court System [JDR] Or Whenever CAM Fails, Helps Parties
Define Issues And Have Plan To Deal With Them
Property of ACA Nimfa Cuesta-Vilches
/ Family Case Mediator [Officer, But Not An
Employee Of The Court] Sits Down With Parties, Facilitates Discussion Of Options And Develop Proposals To Resolve
Disputes / Does Not Take Sides / Parties Attend ,
Make All Decisions / Sessions Are Confidential
If Issues Are Resolved, No More Hearing As It Results
To Compromise Agreement
Otherwise, The Case Goes To Trial Before TheTrial Judge Who Decides The
Case On The Merits And Usually Without
Information As To What Was Discussed At
Mediation *Property of ACA Nimfa Cuesta-Vilches
Mediation Programs Are Best If Court – Based,
Supervised [ PMC / JURIS] Have Strong Judicial , Interdisciplinary [To
Prevent Initial Resistance, Hesitation] Support / Once Ordered By The
Court, Mandatory [PMC / JURIS : Referral Mandatory]
Property of ACA Nimfa Cuesta-Vilches
Culture – Based / Expanded Approach To Mediation [ Use Of Indigenous Methods To Settle
Controversy ] - Agama Arbitration Council Of ARMM /
Dispute Resolution In Cordillera Autonomous Region [ Baguio ]
Property of ACA Nimfa Cuesta-Vilches
Specific Occasions For Family Mediation : Parties Separating , Separated To Negotiate Own Terms Of
Agreement Addressing Needs , Interests Of All Involved / Enables Parties To Decide Best For Them /
Saving Marriage , Family Relationship : Counseling
Property of ACA Nimfa Cuesta-Vilches
Family Mediatable Cases [Under Supreme Court
Rules] 1) Custody / Visitation –
Maternal Preference Rule / Writ Of Habeas Corpus
2) Support - Child And Spousal Support [ Valid
Marriage] / Economic Abuse 3) Property Relations And
Division Between Married Couple / Informal Relations Property of ACA Nimfa Cuesta-Vilches
When Mediation Is Not Appropriate ? [ Screening Mechanism ] : 1] One Person Does Not
Want To Mediate 2] Issues That Cannot Be
Compromised [Status, Future Support, Ground
For Legal Separation, Legitime, Jurisdiction,
Domestic Violence, Crime]
Property of ACA Nimfa Cuesta-Vilches
3] You Are In Abusive Relationship ? [ RA 9262
Crimes : Physical / Psychological / Emotional /
Economic Violence / [Unequal Bargaining Level]Why Family Mediation?
It Can Help Parents Communicate To Each
Other Child Related Issues
Property of ACA Nimfa Cuesta-Vilches
/ Helps Parents Solve Their Own Problems Rather Than Judge
Ordering In A Decision / Costs Less Than
Court Trials / Reaching Decision More Quickly / Less Adversarial / More Humane, Friendly / Even If Already Seeing Lawyer
Property of ACA Nimfa Cuesta-Vilches
Who Can Be Parties ? Husband , Wife
[ Nullity / Annulment Of Marriage / Property
Matter / Legal Separation ] /
Common Law Partners / Former Spouses [ Change
Of Custody / Support , Visitation] / New Partners / Parents / Grandparents /
Children / Custodian Property of ACA Nimfa Cuesta-Vilches
Family Session With Children’s ParticipationAs Parents Reach An Agreement , Session Is
Offered To Them To Invite Age-Approriate Children In Decisions Involving Them / Canada : 15 Years Old And
Above / Philippines : Above 7 With Discernment
Can Choose Custodial Parents
Property of ACA Nimfa Cuesta-Vilches
How Can We Ever Agree?
Is There Any Way To Do It?
Easy Does It With
A Mediator !
“Wow Mr. Mediator, That
Was Real Conciliating!”
Who Can Be Mediators ?Those With Specialized Mediation Training [40 Hours And 2 Months
Practicum ] / With Gender, Child Sensitivity / Mutually
Acceptable To Parties [PMC] / Accredited By Philippine
Judicial Academy [PhilJA] Who: Lawyers / Psychologists
/ Psychiatrists / Religious
Property of ACA Nimfa Cuesta-Vilches
Leaders / Social Workers / Mediator Chosen By
Parties Maybe Replaced [ Element Of Trust Lost ]Who Can Attend Mediation
Proceedings ?Parties / Mediator , Co –
Mediator [One Male/Female : Has Higher Rate Of Success In Family
Mediation SinceProperty of ACA Nimfa Cuesta-Vilches
Gender - Based ] / Lawyers In Assisting Parties As To Legalities Or Draft
Compromise Agreement [ Lawyer Participation
Encouraged Only When Property Division, Support
Issues Are Concerned, Need Not Be Present As
Regards Parenting Issues ]
Property of ACA Nimfa Cuesta-Vilches
/ Child Development Expert / Assigned Caseworker /
Service Provider / Accountants / Property
Evaluators / InterpretersMoral Support : Parents /
Guardians / Other Relatives With Legal Standing / Friends /
Colleagues / Counselors / Support Group Members
Property of ACA Nimfa Cuesta-Vilches
Male - Female Co-Mediation Team :Large Number Of
Participants / Gender Issues Inherent / At
Least One Of Mediators Skilled Therapist / More Creative, Productive /
Has Sense Of Balance / Less Intimidating
Property of ACA Nimfa Cuesta-Vilches
Mediator’s Profile: [PMC: 30 YO] / Knowledge Of
Child Development / Domestic Violence / Family
Dynamics / Substance Abuse / Psychopathology
[ Mental, Behavioral Conditions ] / Not Current Employees Of Protective
Services For Neutrality And Objectivity / [ PMC: With Compensation ] Property of ACA Nimfa Cuesta-Vilches
Mediation vs. Diversion Diversion [ Mediation /
Conferencing / Conciliation ] Alternative
Child - Appropriate Process Of Determining Criminal Responsibility
Based On Social, Economic, Cultural
Factors Without Formal Court Trial [ RA 9344 ]
Property of ACA Nimfa Cuesta-Vilches
Where Mediations Held? [Confidentiality/Privacy] Mediator’s Offices [PMC
Units] / Courthouse / Mediation Centers /
Lawyer’s Offices / Other Places Seen As Neutral Ground / Agreed Upon By Parties Where They
Are Or Feel ComfortableProperty of ACA Nimfa Cuesta-Vilche
Property of ACA Nimfa Cuesta-Vilches
Issues At Play In Family Mediation:
Substantive [Entitlements] /
Procedural [Case Study] / Relational [Marriage, Paternity, Filiation] /
Psychological [Domestic Violence] / Jurisdictional [When Facts Ascertained,
Parties Have Lawyers]
When Can Mediations Take Place ? : Before Separation Of Parties, After / Before
Conclusion Of Agreement , After / Before Litigation /
Before Pre-Trial Conference / During Litigation / After Litigation [ To Deal With
Changed Situations Or Clarify Court Orders ]
Property of ACA Nimfa Cuesta-Vilches
When A Party Chooses To Have Family Mediation ?
Parties Want , Are Ready / Interdependent , Can Rely On Mutual Cooperation / Communication Is Severely Strained And Emotions
Are Tense / No Other Appropriate Or Acceptable Structured Forum Exists
Where Dialogue Can TakeProperty of ACA Nimfa Cuesta-Vilches
Place Like Family Efforts Serious Disagreement
Over Data / Parties Interested In Change
For Future Than About Punishment, Revenge, Or Being Publicly Vindicated / One Or Both Parties Are Uncomfortable In
Confronting The Other Without Someone Else
Property of ACA Nimfa Cuesta-Vilches
Present / When Formal And Rights - Based
Proceedings Are Not Viable Options /
Practical For Lawyers As Will Have Higher
Chance Of Being Paid Than Protracted Court
Trials When Parties Exhausted Finances
[Global Legal Practice]Property of ACA Nimfa Cuesta-Vilches
Factors To Consider : [ Whether To Mediate Or How To Mediate? ]
Use, Abuse Of Alcohol Or Drugs / Emotional
Readiness Of Each Party / Abusive Character Of Party / Ability To Deal Effectively On Issues
Involved [ Economic And Property Matters ]
Property of ACA Nimfa Cuesta-Vilches
How Many Sessions?1) Single Session : Many
Civil Mediations Are Set Up So That Parties Expect To Meet And
Work Out A Settlement In One Session , Usually
In Half Or Full Day Segments / Generally, Legal Counsels Present
Property of ACA Nimfa Cuesta-Vilches
2) Sequential Sessions : Series Of Shorter
Sessions Lasting 2 - 4 Hours Duration Set By Agreement Of Parties /
Sessions Are Often Followed By Mediator’s
Summary Letter As Minutes Of Session
[ PMC : 30 Days Extended For 30 Days By
Court ]Property of ACA Nimfa Cuesta-Vilches
Mediation Usually Takes Between 2 And 6 Sessions
Outcome : Mediators May End With Written
Document Outlining Details Of The Parties’ Agreement
/ May Finalize It With Assistance Of Lawyers And Signed By Parties / Submit
To Court For Approval
Property of ACA Nimfa Cuesta-Vilches
For Partial / On - Going Mediation : Set Out
Agreements Made And The Issues That
Are Still Open For Negotiation / Parties Continue To Meet
Until A Full Agreement Is Made Or Mediation
Itself Is TerminatedProperty of ACA Nimfa Cuesta-Vilches
How To Mediate Emotionally-Packed Family
Law Cases? In Bitter Disputes, Emotions Are Important To Parties
Than Talk / Recognize The Emotions , Yours And Theirs [Are You Nervous?
Remember Each Party Concerned With
Survival] / AcknowledgeProperty of ACA Nimfa Cuesta-Vilches
Emotions As Legitimate / Allow Other Side To Let
Off Steam / Listen, Don’t Interrupt Until Last
Word Is Spoken / Donot React But Manage
Emotional Outbursts [ Set Some Rules Such
As Only One Party Can Get Angry At One
Property of ACA Nimfa Cuesta-Vilches
Point In Time ] / Use Symbolic Gestures [ Handshake : Note Of
Apology, Sympathy ; Flowers ; Gift To
Children] Other Tools For Family Mediators
Dealing With PEOPLE [ In Family Law Cases , The
Problem May Be The
People ] : People Property of ACA Nimfa Cuesta-Vilches
[ Relationship ] Versus Problems [ Issues ]
People : Feelings / Trust / Comfort / Accept Or Reject
Issues : Duties / Terms / Costs / Deadlines / Data * What If Parties Are So Awful?
Still Mediate?Yes, Only Question Would Be
Property of ACA Nimfa Cuesta-Vilches
How To Mediate? : Mediators Are Also People
First [ They React / Are Angry / Disappointed ]
1. Open Mind - Couples With Problems Not As Of The
Moment Perfectly Rational2. Clear Communication Lines
: Do Not Assume That Things Are / Are Not
Property of ACA Nimfa Cuesta-Vilches
Avoid Stereotyping / Victim - Blaming : Be Sensitive / Respect Values, Gender, Level Of Education And Financial Ability, Age, Culture, Religion, Mood
* Use Of Proper Skills By Family Mediator Leads To
Successful Mediation [PMC: Bound By Ethical Standards]
Property of ACA Nimfa Cuesta-Vilches
Getting Passed An IMPASSE [ Parties Cannot Move Their
Discussion Forward ] Reasons : Varying Facts [Clarify] / Personality [ Role Reversal, Private
Session] / Solution, “Take It Or Leave It!” [ Ask Why To Ascertain Interest ]
Property of ACA Nimfa Cuesta-Vilches
Active Involvement Of Mediators Protects Against Power
Imbalances Of Participants Out Gender, Various Levels Of Skill, Experience, Professional Status Or Cultural Differences / Reduces Animosity Towards The System
Property of ACA Nimfa Cuesta-Vilches
Limits To Mediation: Some Aspects That May Not Be Mediated - Partial Mediation Is Still Good Since There Are Results / Some Things Mediator Cannot Attain / Get Party To Have “Micro-BATNA” [No Agreement At
This Meeting / Thanks / Getting In Touch With Fresh Proposal Next Meeting ]
Property of ACA Nimfa Cuesta-Vilches
From Plans / Options To Binders And Commitments :
1. Starting It Right - At Beginning, Have An Idea What And How The Agreement Will Look Like
2. Closure On Issues / Debrief – Parties Satisfied, Fairly Treated , Healed, Ready, Move Forward / Build Ties [ Future Mediation ]
Property of ACA Nimfa Cuesta-Vilches
Turning The Agreement Into A Court Order :
* Agreement To Occur As A Result Of Mediation / Agreement Not Contrary To Law, Morals , Public Policy / Clear And Signed By Parties And Counsels / Approved By Court For Compliance, Execution *
Property of ACA Nimfa Cuesta-Vilches
MEDIATION BRINGS US FROM THE AGE OF “ME” TO
THE AGE OF “WE”!