A SOURCEBOOK ON ALTERNATIVES TO FORMAL DISPUTE RESOLUTION

MECHANISMS

A Publication of the

Justice Reform Initiatives Support Project

A SOURCEBOOK ON ALTERNATIVES TO FORMAL DISPUTE RESOLUTION MECHANISMS Copyright © 2008 by the National Judicial Institute and the respective authors. All Rights Reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission in writing of the publisher. ISBN - 978-971-91990-3-8 Cover and Book Design by Mr. Danvic Briones Layout Design by Mr. Ronald V. Chungtuyco Editing by Ms. Charina Ubarra The publication of these materials was undertaken with the financial support of the Government of Canada provided through the Canadian International Development Agency (CIDA). This publication is part of the Justice Reform Initiatives Support (JURIS) Project, a project supported by CIDA through the National Judicial Institute of Canada. The JURIS Project is being implemented in cooperation with the Philippine Supreme Court, the Philippine Judicial Academy and the Alternative Law Groups Inc. The article on Court Annexed Mediation has benefited from work done under the auspices of The Asia Foundation and the United States Agency for International Development.

Table Of Contents PREFACE Hector Soliman xi INTRODUCTION: Sustaining The Gains Of xv

The Juris Project In ADR Andrew Ong

Impact Of The Barangay Justice System 1 On Decongesting Court Dockets And Broadening Access To Justice: Looking Back And Forward Alfredo Tadiar Court-Annexed Mediation: 24 Summing Up The Past And Charting The Future Carolyn A. Mercado And Damcelle S. Torres The Lawyer’s Perspective On ADR 45 In The Courts And Its Implication On The Profession Imelda Gidor Judicial Dispute Jesolution (JDR) 59 As An Innovative Mode Of Dispute Resolution Atty. Salvador S. Panga, Jr. Rediscovering Olden Pathways And Vanishing Trails 91 To Justice And Peace: Indigenous Modes Of Dispute Resolution And Indigenous Justice Systems Maria Roda L Cisnero Traversing Boundaries And The No-Man’s Land: 129 On Mediation, Gender, Rights And Justice Eleanor Conda About The Authors 159 Annex – Government Agencies With Mediation Programs 164

PREFACE The concept of “Alternative Dispute Resolution” or ADR is coming of age in the Philippines, with the passage of the ADR Law, and the introduction of mandatory court annexed mediation in the Philippine Judiciary. Although mediation, conciliation, and arbitration are usually referred to as variants of the practice of ADR, the term “alternative” has been the subject of much discussion. Indeed, when one considers the adversarial mode of conflict resolution, very much institutionalized in the courts, then mediation truly offers a desirable alternative to such a process. However, when one considers the historic Filipino tradition of settling community disputes through mediation along with the existing social practices of many indigenous peoples in the country that utilize mediation through their elders, then this modern day approach does not seem that modern at all. Be that as it may, the introduction of ADR in the judicial mainstream is a very welcome development. The empirical studies conducted in the technical studies of the Justice Reform Initiatives Support (JURIS) Project reveals a lot of promise in the use of ADR to promote access to justice, gender equality and court decongestion. These studies also show the over-all satisfaction with ADR as a means of resolving disputes. However, the program is not without its challenges, at various fronts – organizational, conceptual, philosophical, and operational. 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 Introduction to this compilation was written by Atty. Andrew Ong, a Court of Appeals Mediator and the Project Administrator of the ADR Strengthening Component of the project. He orients the reader on the process and factors that gave rise to the multi-stakeholder approach to the installation of ADR, borne out of JURIS’ own experience with the project. He presents the importance of the involvement of various stakeholders in the ADR process, including judges, lawyers, mediators, and civil society, to ensuring the

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sustainability and continuity of the initiatives introduced by the project. 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.

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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. Through this publication, JURIS hopes to contribute to the literature on ADR as it is being practiced in the Philippines. It is the

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organization’s hope that serious students of ADR would learn from the lessons that have been culled from the experiences presented in these pages, based on more than fifteen years of installing, implementing and evaluating ADR practice. This collection does not pretend to be the last word in the practice of ADR in the Philippines, nor does it cover all of the facets of the said practice. But, JURIS certainly hopes that it does cover a significant slice of the experience, so that it could serve as a platform for improvement and innovation in the future. For more information on court annexed mediation, judicial dispute resolution and appeals court mediation, JURIS invites the readers to log on to www.pmc.org.ph, the official website of the Philippine Mediation Center of the Supreme Court, which is the organizational expression for all ADR-related activities of the Supreme Court. In closing, JURIS would like to thank the Canadian International Development Agency (CIDA), more particularly the Head of Aid, Mr. Tom Carroll, and our Senior Program Officer, Ms. Narcie Rivera, for their continuous financial and moral support to JURIS. The organization would also like to thank all the contributors to this anthology, for without their insights and reflections, this collection would not be possible. Finally, we would like to thank our graphic designers, Mr. Danvic Briones and Mr. Ronald V. Chungtuyco, our editor, Ms. Charina Ubarra, both professors at the De La Salle – College of St. Benilde, who put together this book for all to see and appreciate. Atty. Hector D. Soliman JURIS Local Project Director June 9, 2008

INTRODUCTION Sustaining the Gains of the JURIS Project in ADR

Sustaining the Legacy 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.

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Defining the JURIS strategy However, beyond the financial and organizational needs of the project, another factor was equally crucial to sustain the inroads that were made towards the promotion of court-initiated mediation. Fortunately, even before the discussions about sustainability started, the project’s implementation design itself paved the way for sustaining its initiatives. More specifically, the multi-stakeholder strategy of the project is actually a formula that will help guarantee the continuity of its undertakings. The rationale behind JURIS’ use of such a strategy is best seen in the light of the realities prior to the introduction of the project. Understanding how JURIS implemented its mandate to innovate will bolster the thought that the legacy of JURIS will continue. JURIS entered the court-initiated mediation scenario in 2004 at a time when the Supreme Court, through the Philippine Judicial Academy (PHILJA), had already installed and operated several mediation centers in the country and pilot-tested mediation at the Court of Appeals, a few years back. Thus, JURIS had the benefit of learning from the past experiences of all these mediation initiatives of the Supreme Court. The lessons learned by JURIS undoubtedly helped the project’s management forge a multi-stakeholder strategy in installing mediation in the model court sites. A multi-stakeholder approach meant involving more than just private mediators in creating and running the mediation centers. It also meant going beyond the training and fielding of mediators to the courts. It was a strategy that required the participation of all those who will be affected by the change brought about by court-annexed mediation and whose actions, in turn, will impact on the success or failure of the mediation initiative. These persons included lawyers, judges, court personnel and key public sectors in society. As a result of the multi-stakeholder approach, the legal counsels of parties-litigants are now welcomed and encouraged to take an active part during the negotiations in the mediation proceedings. The judges handling cases referred to mediation are also given the opportunity to mediate or act as conciliators/mediators and neutral evaluators to help parties-litigants and their lawyers negotiate settlements in mediation. On the other hand, court personnel are put to task in monitoring mediatable cases and ensuring that such cases undergo mediation before proceeding to trial.

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Past experience showed that the lack of involvement of lawyers, judges and court personnel resulted in greater resistance from these sectors and had a significant negative impact on the mediation initiative of the court. Judges did not refer cases to mediation. Lawyers did not take mediation seriously and frequently advised clients to refuse mediation. Court personnel complained of additional work in dealing with mediation-related matters. 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. On the other hand, lawyers saw mediation as a threat to their livelihood and considered mediators as “unfair competitors” to their profession. Their presence in mediation was oftentimes unwelcome or discouraged. As a reaction, many lawyers asked: “how can a non-lawyer take control of their client’s cases?” Obviously, there was a lot of mistrust and misgivings as lawyers were left out of the mediation process. Also, court personnel did not appreciate the merits of mediation. They felt their work was affected but they did not see the benefits of the practice. With all these problems cropping up in various degrees throughout different mediation centers, the administrators and policy-makers in charge of the court-annexed mediation initiative decided to try new operating framework and strategy to improve the situation. Thus, when JURIS was conceptualized, the idea of involving lawyers, judges and court personnel in a more integral way made its inroad into the project’s strategic plan. Initially, when the strategy was formulated, the idea of having judges conduct the mediation with the administrative support of court personnel, and lawyers appearing and participating in the mediation process was met with objection and suspicion by some. Such objection was understandable, if not expected, because admittedly, the multi-stakeholder approach was a most radical deviation from the existing paradigm and practice of separating mediation from court processes.

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It was perhaps, providential that JURIS was established through PHILJA’s partnership with the Canadian government because the mediation experience in Canada precisely fits the new approach of the Supreme Court in involving lawyers, judges and court personnel. With more than ten years of experience in court-annexed mediation, the Canadian model had evolved to include judge-mediators and lawyer-mediators. Canada also had its share of the problems with lawyers in the early years of the introduction of mediation. Their experience taught the Canadian courts to invite the bar association to work with the courts on mediation. Thus, backed by the Canadian experience, JURIS boldly embarked on the new and innovative multi-stakeholder approach to mediation. Meeting the Challenges to Implementation The multi-stakeholder strategy, however, was an expensive and elaborate approach. More time and effort was required, and a bigger organization had to be in place to manage the whole initiative. As a result, JURIS formed its own team to augment the existing organization of PHILJA. The JURIS team comprised of middle managers stationed at PHILJA and field personnel working in each model court site. The mediation center in each of the model court sites had at least four full-time project employees operating the mediation center and serving as liaisons to the court and other stakeholders. On the other hand, the middle managers took care of planning, implementing and monitoring the various activities in the “supply-chain” of mediation. These activities include start-up steps such as: 1) the recruitment of mediators from different sectors; 2) the orientation of judges, lawyers and court personnel; 3) the design of a special mediation skills curriculum and mentoring facility; 4) the recruitment and training of mediation staff; 5) the design and construction of mediation centers; and 6) the actual conduct of skills-training for judges and mediators which dovetailed with their internship or on-the-job training. 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

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involve a wider community base. Consequently, the model court sites had preachers, teachers, former judges, lawyers, businessmen, media practitioners, military and peace officers, Barangay councilors and other government officials, doctors, bankers and social workers, serving as mediators. Each candidate was interviewed and carefully screened so that expectations were aligned and responsibilities were made clear before anyone was accepted for training and accreditation as mediator. Also, the design and implementation of the various training programs was a huge and significant endeavor for JURIS. To engage the different stakeholders, varied programs were designed for different stakeholders. Judges were trained differently from the mediators, while lawyers and court personnel had their own orientation program. The different curricula were designed in collaboration with Canadian trainers, and training materials coming from Canada had to be modified and transformed into Philippine-based culturally-attuned training aids. For the intensive skills training for judges and mediators, the curricula was specially crafted to be an “individualized” training program to allow each participant-trainee the opportunity to engage in hands-on skills practice, both in the classroom and in the real world. Normally, in other training programs, not all participants were given the time to practice their newly acquired skills. Only demonstrations were done with a few volunteers from the trainees. However, in JURIS, lectures and presentations were kept at the minimum while skills-enhancing exercises were aplenty. Facilitators also outnumbered the lecturers in JURIS training. More specifically, one facilitator was assigned to every five or six participants-trainees, and the facilitator was seated together with the trainees in order to attend to their queries and concerns at any point in the training. Facilitators were trained to coach the trainees and monitor the progress of their skills from the start of the program up to the end of the training. Learning was then immediately applied by the trainees in the internship period that followed. Internship was regarded as an integral part of the training and trainees were supported by mentors during their first few mediation conferences. 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

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and education campaigns, refresher courses and discussions on mediation with mediators and judges, as well as other feedback mechanisms were done to mirror back the performance of the different protagonists. These measures then resulted in policy changes and amendments in the rules governing the court-annexed mediation practice, when necessary. In effect, a loop was created to link the front liners, which comprised of the judges, lawyers, mediators and court personnel, to the policy-makers at PHILJA; with the JURIS team serving as the conduit to transmit information to and from the two. With the loop, a continuous cycle of planning, implementing and assessing initiatives was formed. In hindsight, what the multi-stakeholder strategy has achieved through the years was the creation of an organizational culture where the innovations can thrive and continue beyond the project life. The project stakeholders have become the bearers of this new culture and the natural impetus to bring the innovations further, and for a longer period beyond the project life. Now, perhaps, that is greatest legacy of JURIS. Atty. Andrew Ong Project Administrator for the JURIS ADR Component June 9, 2008

IMPACT OF THE BARANGAY JUSTICE SYSTEM ON DECONGESTING COURT DOCKETS

AND BROADENING ACCESS TO JUSTICE: LOOKING BACK AND FORWARD

By

Alfredo F. Tadiar

Chair, ADR Department Philippine Judicial Academy

Inevitability of conflict and dispute in society1

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.

Need to Create Order in Society Without some sort of arrangement as to how members of society are to conduct themselves in relation to each other, the weak will be downtrodden and oppressed while the innocent and gullible will be taken advantage of, by the crafty. Valuable time and energy that may be put to better use, is wasted in a self-help effort for individual protection and avoidance of oppression and exploitation. Under such conditions, no individual can realize his full potential; anarchy will prevail and society itself cannot long endure. 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. In traditional societies, as in Pre-Hispanic Philippines, such substantive arrangements are inferred from customary patterns of behavior that, in time, become respected traditions.3 As society modernizes, such implied understanding or customs and traditions are made explicit in provisions of statutes4 enacted by the legislature in representation of the people or dictated by a ruler5 who may be benevolent or despotic.

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 Act7 and the Urban Land Reform Act8, 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. At the micro or individual/personal level, negotiations to settle a dispute may result in some contractual arrangement to govern the future relationship of the parties. A collective bargaining agreement (CBA) between an employer and a labor union is a good example of this mode of societal ordering. Lawyers who undertake to draft the terms and conditions of such a contract, in effect, engage in what has been called “private law-making”.9 This is indeed an accurate observation, for it is a well-known legal doctrine that a “a contract is the law between the parties”. The contract aims to govern the future relations of the parties by terms that are carefully worked out and agreed upon for short or long term periods. This is another form of societal ordering at the micro level.

Modes of Resolving Disputes 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.

C. Third Party Intervention Mode

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.

Distinctions between mediation and adjudication While both methods involve processes for resolving disputes, they may be distinguished from each other in the following significant respects:

Standards Mediation Adjudication

1. Product Compromise Agreement

Judgment

2. Maker of Product

Parties themselves

Judge

3. Focus

Person Act

4. Outlook Forward Backward

5. Process Flexible Rigid

6. Result Win-Win Win-Lose

Barangay Justice

Each one of those distinctions shall be discussed separately, as follows: The product of mediation is a compromise agreement while the product of adjudication is a judgment. As defined by the Civil Code, “a compromise is a contract whereby the parties, by making reciprocal concessions, avoid litigation or put an end to one already commenced”.13 Although the judicial resolution of a dispute is often called a decision, there is a distinction that may be drawn between the two terms - decision and judgment. While a decision, such as to get married, may often be based on emotion like falling in love, judgment is based on a rational evaluation of evidence bearing upon an issue that relates to a relevant standard. Such standard distinguishes right from wrong, legal from illegal, moral from immoral, or ethical from unethical. Judgment is a product of the mind and emotion should not be allowed to becloud the rendition of a clear judgment. 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. By reason of the foregoing distinctions, the mediation process must necessarily be informal, even friendly, casual and flexible. In contrast, the adjudicative process is formal, rigid, distant and aloof. This is essential to show the seriousness of the process that may result in the deprivation of property, liberty or even life itself. 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.

Conditions for reform 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. Dissatisfactions with the Judicial Adjudicative Mode 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. 3. Popular incomprehensibility of judicial proceedings Court proceedings are conducted in English, a foreign language that is poorly comprehended by the general populace who are normally not comfortable with it. The language barrier is compounded by the use of legal jargon that is understood only by lawyers. A party’s narration of events, using his own words, are cut short by objections of the opposing counsel demanding that the party only answer questions that are propounded to him. An intimidating cross-examination that is designed to catch the witness lying or to expose his poor recall is a terrifying experience for most witnesses, even educated ones. This leads to popular frustration with judicial processes.

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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4. Restricted access, ACID

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 problem of incompetence is sought to be reduced by the training programs being given to judges by the Philippine Judicial Academy (PHILJA). Former Chief Justice Panganiban envisions, with the construction of a new PHILJA Development Center in Tagaytay “to establish a special school for young lawyers who aspire to become career judges”.20

5. Unsuitability of adjudication for minor disputes

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. Approaches to solve court docket congestion

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 The proliferation of offenses based on violations of regulatory and sumptuary legislation or ordinances may be seen as contributing heavily to the judicial workload. A logical step is, therefore, to decriminalize these violations as not being real or true crimes. A

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step in the right direction is to allow the voluntary payment of fines for traffic violations without court intervention. Administrative handling and not judicial processing would be more efficient. Another example could be the possible decriminalization of violations of the Bouncing Checks Law that is now heavily clogging the dockets of first level courts. A step towards this goal was taken when the Supreme Court issued a directive not to impose the prison sentences that is imposable under B.P. 22. A worthy move that was not pursued for some reason or another is to have this crime be made conciliable under the KB Law. The advantage of this move would be to add a ground for the extinction of its criminal liability in the event of a settlement. This is unlike the present situation where only the civil liability is extinguished.

b. Prior conciliation of family disputes

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. c. The Katarungang Pambarangay Law 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. The Presidential Commission created by President Marcos under P.D.1293 on 27 January 1978 was for the purpose of “studying the feasibility of instituting a system of resolving disputes among family and barangay members at the barangay level, without recourse to the courts”. The Commission, headed by Chief Justice Fred Ruiz Castro and six other cabinet members, entrusted the actual task to a Technical Committee composed of the representatives of the seven Commission members. The working group includes the author, Professor Tadiar, who went on to become a key member not only in the conceptualization but in the finalization of the law and its implementing rules. Instead of just making a study and recommendation, however, the Technical Committee went on to draft the law itself. The original design was expanded to include disputes not only between family members and barangay residents, but also residents of the larger city or town.

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.

C. Court Diversion of Pending Cases 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. a. Court-referred, Court-annexed Mediation 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.

b. JDR Settlement – Pre-Trial Enhanced 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.

c. Appeals Court Mediation 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.

d. Diversion of construction disputes

Section 39, R.A. 9285, provides as follows:

Court to dismiss case involving a construction dispute.- A Regional Trial Court before which a construction dispute is filed shall, upon becoming aware, not later than the pre-trial conference, that the parties had entered into an arbitration agreement, dismiss the case and refer the parties to arbitration to be conducted by the CIAC, unless both parties, assisted by their respective counsel, shall submit to the Regional Trial Court a written agreement exclusively for the court, rather than the CIAC to resolve the dispute.

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

e. Diversion of international commercial disputes 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.

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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).

Advantages of settling under the KB Law 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. On the matter of popular incomprehensibility of judicial proceedings, KB dispute processes are conducted in the vernacular or language understood by the parties. Parties are encouraged to tell their side of the dispute freely and unencumbered by legalities. In fact, it is important to stress that no lawyer is allowed to intervene in Barangay conciliation proceedings, much less to make obstructive objections on procedural grounds that would judicialize the dispute in the manner that lawyers are trained for. On the matter of judicial delay, KB processing is restricted to thirty days, extendible to another period of the same limited duration. 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. Standard to determine suitability of mediation or adjudication 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.

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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.

• Essential Features of the KB Law

• In a nutshell, there are three essential features of the KB Law, namely, 1) it provides for a conditional access to the formal adjudicative agencies of the Government;28 2) it is a bar against legal representation;29 and 3) the compromise agreement or settlement under it is vested with the force of a judgment.30 • 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.

• The second feature of the KB Law is that representation of a party, particularly by a lawyer, is prohibited. Section 415 of the Local Government Code provides as follows:

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.

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• 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:

• “Execution.- The amicable settlement or arbitration award may be enforced by execution by the lupon within six (6) months from the date of the settlement. After the lapse of such time, the settlement may be enforced by action in the appropriate city or municipal court.”

• 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.

How the KB Law operates a. Conditions for applicability

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.

The second condition is often erroneously interpreted as restricting KB application to the territorial limits of the barangay. Perhaps, the confusion is foisted by the title of the law and the original intent stated in the decree which was expanded to include residents of an entire city or town.

32 Section 410, id. 33 Section, id. 34 Section 408, ibid.

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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. b. Subject matter jurisdiction

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. For administrative disputes that involve the performance of official functions of a government official, the law provides that the KB system has no jurisdiction. It is thus important to distinguish whether the act complained of against a public official was done in relation to the performance of his official duties or in his capacity as an ordinary citizen. The reason for this provision is that the development of a committed public service through effective disciplinary sanctions must override considerations of the convenience of the individual. A compromise would detract from this laudable objective.

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.

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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.

d. Procedure for settlement

Complaints are required to be filed in the proper barangay as stated above. 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 differences38. 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

The KB Law provides as follows: 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.

h. Enforcement of settlement or award

The KB Law provides as follows: Sec. 417. Execution.- The amicable settlement or arbitration award may be enforced by execution by the lupon within six (6) months from the date of settlement. After the lapse of such time, the settlement may be enforced by action in the appropriate city or municipal court.

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.

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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. As to other objective of the KB system of broadening access to justice, referring to an empirical study that this author conducted in San Fernando, La Union, with funding assistance from The Asia Foundation, the conclusion was reached that the respondents surveyed placed great value on the KB system for having empowered them to resolve their own disputes. This has now been enshrined as a State Policy in the ADR Act of 2004 (R.A.No. 9285) when it explicitly expressed it as a state policy to respect party autonomy or the freedom of the parties to make their own arrangement to resolve their own disputes43.

43 Section 2, R.A. 9285.

COURT-ANNEXED MEDIATION: SUMMING UP THE PAST AND CHARTING THE FUTURE

Carolyn A. Mercado and Damcelle S. Torres∗

Mieux vaut un mauvais accord qu'un bon proces.("Better a poor agreement than a good trial.") Georges Bernard, lawyer, Paris Law Court

The hot button issue in the justice reform movement today is Alternative Dispute Resolution (ADR). Throughout the world, ADR processes are making an enormous contribution to resolving disputes both in and out of the court system. Private ADR processes are mushrooming and ADR has become a profession for many. Courts have adopted these processes too, and have offered these ADR processes either mandatorily or voluntarily to party litigants. Heavy reliance on traditional and adversarial processes is now being minimized. Getting disputes resolved in less contentious and more consensual ways is becoming the norm. The Philippine Judiciary is not lost in this global development. With a backlog of more than 800,000 cases and the threat of docket explosion, the Supreme Court searched for ways to promulgate a simplified and inexpensive procedure for the speedy disposition of cases in all courts. In 1999, along with relevant stakeholders and with support from international donor agencies1, the Supreme Court formally introduced Court-Annexed Mediation (CAM) to the Philippine Judicial system.2 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

conducted two more pilot tests – one in selected cities in Metro Manila from July to September 2000, and another in Cebu and Davao from October 2000 to April 2001. The success rate this time increased to a staggering 87%.

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.

First, it established the Philippine Mediation Center (PMC), an office whose objective was to set up PMC units in courthouses in the 13 judicial regions nationwide. PhilJA was designated as the Supreme Court’s component unit for CAM and other alternative dispute resolution (ADR) mechanisms, and was directed to manage the PMC and its units.

Second, the Supreme Court approved the Second Revised Guidelines in the Implementation of Mediation Proceedings, which identified the following cases that can be referred for mediation:

(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;

(2) Cases cognizable by the Lupong Tagapamayapa under the Katarungang Pambarangay Law (Barangay Justice System);

(3) Civil aspect of B.P. 22 (Bouncing Checks Law) cases; and (4) Civil aspect of quasi-offenses under Title 14 of the Revised

Penal Code.4

Third, Standards and Procedure for Accreditation of Mediators and Code of Ethical Standards for Mediators were also issued to ensure the quality and competency of mediators. Under the standards and procedure, a mediator must, among others, be a college graduate, at least 30 years old, trained in mediation and accredited by the Supreme Court. The same resolution also provided for Compensation

Revised Guidelines on Mediation, A.M. 01-10-5-SC-PHILJA, October 16, 2001. 4

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Guidelines for Mediators and Supervisors, which was later superseded by the Revised Rule 141 on Legal Fees.5 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 Recognizing the potential of CAM for docket decongestion, the Supreme Court expanded CAM to the Court of Appeals through a pilot test by the end of 2002.6 The two-month pilot test yielded a 67 percent success rate. The Appellate Court Mediation Project moved to its second phase in 2005. The second phase focused on the internship of newly-trained Court of Appeals mediators and led to the issuance of the Proposed Revised Guidelines for the Implementation of Mediation in the Court of Appeals.7 Under the guidelines, cases that can be mediated in the Court of Appeals are:

(1) Civil cases brought on ordinary appeal or petition for review; (2) Appeals from final orders, awards, judgments, resolution of

quasi-judicial agencies in the exercise of their quasi-judicial functions through petition for review or certiorari;

(3) Special civil actions for certiorari, except those involving pure questions of law;

(4) Habeas corpus cases involving custody of minors, with the consent of the parties, provided that the minor is not detained for the commission of a criminal offense; and

(5) Criminal cases cognizable by the Katarungang Pambarangay, under Republic Act No. 7160, involving offenses punishable by imprisonment not exceeding one year or a fine not exceeding P5,000.00.

The guidelines also laid down the qualifications of mediators in the Court of Appeals. They are limited to retired justices and judges, senior members of the bar and senior law professors who are trained and accredited by the Supreme Court.

A.M. No. 4-2-04-SC, July 20, 2004. 5

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).

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Milestones Direction is more important than speed. We are so busy looking at our speedometers that we forget the milestone.

Anonymous 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 In the same year, the Canadian International Development Agency (CIDA) initiated the Judicial Reforms Initiatives Support (JURIS) Project, which included CAM as a component. Under JURIS, PMC units were established in Bacolod City and San Fernando, Pampanga by mid-2004 and in the provinces of Benguet and La Union in 2006. More PMC units were established in Negros Occidental thereafter. Mediation Fee Establishment of PMC units was primarily funded by foreign donors such as USAID, The Asia Foundation, and CIDA. But starting August 2004, the operation of existing PMC units and the creation of additional ones have also been supported by the Mediation Fund, a special fund created by the Supreme Court to ensure the sustainability of the CAM program.9 Amending Rule 141 of the Rules of Court on legal fees, the Supreme Court mandated the collection of mediation fees in the amount of P500.00 in regular courts. The collected amount forms part of the Mediation Fund which PhilJA manages for use in training seminars, workshops, and internship programs for mediators, payment of mediators’ fees and the PMC Unit Supervisor, advocacy and promotion of court-annexed mediation, and other relevant modes of ADR.10 Nowadays, the expansion of PMC units is funded through the Mediation Fund. 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. A.M. No. 04-02-02 SC, July 20, 2004, effective August 16, 2004. 9

Ibid. 10

Court-Annexed Mediation 28

To ensure the proper collection and use of mediation fees, the Supreme Court issued various resolutions providing for:

(1) Implementing Guidelines for the Utilization and Disbursement of the Mediation Fund Provided for in Section 9 of the Revised Rule 141 of the Rules of Court on Legal Fees;11

(2) Guidelines for Collecting Fees for the Mediation Fund Under Section 9, Rule 141 (A.M. No. 4-2-04-SC effective August 16, 2004) and A.M. No. 01-10-5-SC-PHILJA dated October 16, 2001;12 and

(3) Collection of Mediation Fees and Payment of Mediator’s Fees.13

131 PMC Units 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 units14 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.

A.M. No. 05-3-25-SC-PHILJA, April 25, 2005. 11

A.M. No. 05-3-13-SC-PHILJA, July 5, 2005. 12

A.M. No. 04-8-12-SC, July 19, 2005. 13

54 units funded under TAF; 40 units funded by JURIS; and 37 units funded by the PMC Fund. 14

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Judicial Region

PMC Units Funding

15NCR 18 units in Metro Manila TAF Region I 10 units in La Union and

BenguetMediation Fund/JURIS

16

17Region II 1 unit in Cagayan Mediation Fund Region III 18 units in Pampanga and

BulacanMediation Fund/JURIS

18

Region IV 7 units in Batangas and Rizal

Mediation Fund 19

20Region V 6 units in Bicol Mediation Fund Region VI 22 units in Negros

OccidentalJURIS

21

22Region VII 9 units in Cebu TAF/Mediation Fund 23Region VIII 17 units in Leyte TAF

24Region IX 1 unit in Zamboanga del Sur Mediation Fund 25Region X 4 units in Misamis Oriental TAF /Mediation Fund

Region XI 15 units in Davao and South Cotabato

TAF 26

27Region XII 3 units in Lanao del Sur PMC Fund PhilJA’s experience has shown that local stakeholders (e.g. local government, Chamber of Commerce) play a crucial role in the establishment and operation of PMC units. In Leyte, for instance, PMC units were established through support from the Congresswoman and Governor who allocated funds for the construction of the PMC Building. 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.

Tuguegarao City 17

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.

Naga, Pili, Calabangga, San Jose, Iriga, Ligmanan. 20

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.

Zamboanga City 24

TAF: Cagayan de Oro; PMF Fund: Misamis Oriental, Bukidnon, and Camiguin. 25

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.

Iligan City, Ozamiz City, Marawi City. 27

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The CAM program is now backed by 697 mediators trained and accredited to conduct mediation proceedings in trial courts and the Court of Appeals. To maintain the accreditation, continuous training in mediation is required. Accreditation of trial court mediators is renewed every two years,28 while accreditation of Court of Appeals mediators expires every five years.29

Success rate Efforts at promoting the institutionalization of CAM have not been in vain. Despite a slight decrease in the number of cases referred for mediation from 2005 to 2006,30 the number of referred cases shot up again in 2007.31 Further, the number of cases that were actually and successfully mediated has been increasing each year, with most of the successfully mediated cases resolved after one or two sessions only.32 CAM presently boasts of a 72 percent success rate for 2007,33 placing the over-all success rate from 2002 to 2007 at 71 percent.34

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 36,15535 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

A.M. No. 01-10-5-SC-PHILJA, October 16, 2001. 28

A.M .No. 4-3-15-SC-PHILJA, September 26, 2006. 29

30 In 2005, 25,745 cases were referred for mediation while in 2006, 21,210 cases were referred for mediation.

34,370 were referred in 2007, the biggest number so far since 2002. 31

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.

Out of the total 50,660 cases actually mediated from 2002 to 2007, 36,155 were successfully mediated. 34

This includes 2007 data. 35

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

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38of all such cases combined is only counted as one case. Hence, it is highly likely that the number of successfully mediated disputes translates to more cases cleared from court dockets. Notably, most (22 percent) of the successfully mediated cases involve violations of the Bouncing Checks Law, which are essentially collection cases that easily clog court dockets. These accomplishments have been achieved with only 131 PMC units (less actually at the time of the data analysis) in more than 2,000 trial courts throughout the country. Establishment of more PMC units thus promises a greater impact on docket decongestion. Challenges Challenges are neither good nor bad. Challenges are simply challenges. Carlos Castaneda Court-Annexed Mediation has come a long way since the first attempt in 1991, but, it was not an easy ride. It was fraught with problems and challenges that were it not for the dogged determination of PhilJA, Court-Annexed Mediation would have gone the same way as other past pilot projects: a useful exercise. 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 transaction. In court-annexed mediation, separate crimes relating to one transaction may be consolidated and mediated in one proceeding. 38 Under the Implementing Rules and Regulations on Mediation in the Trial Courts (Resolution No. 02-04, March 23, 2004), “(w)hen there is consolidation of cases by the trial court and the Mediator for all such cases perform only one mediation proceeding, then such consolidated cases settled are considered as only one case.”

Dean De Los Angeles’ Court Annexed Mediation Lecture. 39

Court-Annexed Mediation 32

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. All hope is not lost though, because it might be that as lawyers mature in their practice, they will come to the realization that the primary role of a lawyer is not to litigate – to be a hired gun, and thus, win at all costs – but to be a problem-solver, a “reconciler of divisions, a pursuer of just solutions.”40 A few are beginning to tread the less-traveled path. The incorporation of ADR courses in law school education will be a step in the right direction. Lawyers should be required to advise their clients regarding dispute resolution options other than litigation, as part of legal ethics. Business groups have started incorporating a provision to explore mediation and other forms of alternative dispute resolution in case of business disputes in their contracts; the legal profession should definitely follow suit. Judges, too, who are crucial to the success of court-annexed mediation, have to undergo a major paradigm shift. Some are taking the leap, but a lot more have reservations about cases going out of their dockets to be handled by non-lawyers. Judges have negative assumptions about the ability of non-lawyer mediators to dispense ‘justice’ properly. Thus, not too many judges refer cases to the Philippine Mediation Center, even if one exists in their jurisdiction. They also dread the public ridicule of being called juezes de areglo.41 Many judges have this notion that if a case in their docket is settled rather than adjudicated, the public may think that the judge is either lazy or incompetent. This perception then leads to the public’s ignorance of alternative dispute resolution, which is one of the major challenges in promoting Court-Annexed Mediation. With the rituals, formalities, and everything that the judicial system represents, a significant number of the general public still believe that they can only get justice through the courts, even if that means suffering the delays of the slow-grinding wheels of the justice system.

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

To increase the level of public awareness and appreciation of Court-Annexed Mediation, continuous education and information drives, advocacy briefings, development of a Communication Plan for Court-Annexed Mediation and distribution of communication materials were undertaken by PhilJA. The Mandatory Continuing Legal Education for lawyers and the Mandatory Continuing Judicial Training for judges now also include ADR sessions. These activities need to be sustained in order to muster greater support for CAM. Limited coverage 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 The challenge of minimal referral significantly relates to the problem with judges who adamantly refuse to refer cases to mediation despite the strength of a Supreme Court directive. Although the number of cases referred to mediation shows an increasing trend, Dean De Los Angeles pointed out that the annual average of cases referred represents only ten percent of the total cases that can be mediated.43 The potential of CAM in clearing court dockets is clear from the fact that out of the 608,555 cases pending in first- and second-level trial courts in December 2006, around 16 percent or 98,507 were civil cases. This class of cases includes disputes that can be mediated. With an average of 58,140 new civil cases filed each year, there are potentially 156,64744 mediatable civil cases in court. Ninety percent of this number therefore, is yet to be brought to PMC units for possible settlement.45 Dean de Los Angeles thus proposed that the 42 Dean De Los Angeles’ Court-Annexed Mediation Lecture. The Asia Foundation, with USAID support, is currently undertaking a research project on expanding the coverage of Court-Annexed Mediation. 43 This was at the time of his lecture, using data from 2002-March 2007. Based on figures from 2002-December 2007, the annual average of cases referred to mediation represents 11% of the 156, 647 potentially mediatable civil cases.

98,507 civil cases as of December 2006 plus 58,140 new civil cases filed each year (on the average). 44

45 Dean De Los Angeles’ Court-Annexed Mediation Lecture, citing Summary Report of Cases for Years 2000-2006, Statistical Reports Division, Court Management Office, Office of the Court Administrator, 2007.

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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. Funding and Sustainability Like many public endeavors involving a public good or service, funding was, and still is, a key issue. In order to institutionalize mediation in the 13 judicial regions, a nationwide roll-out is necessary, but this means resources have to be sourced out considering the financial and manpower limitations of PhilJA. 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. To address CAM’s sustainability, it is essential that PhilJA reviews the three options presented by the Center for Public Resource Management47 in order to prepare for CAM’s expansion and thus, sustainability:

(1) PhilJA’s full administration of the PMC and its units, i.e. CAM units will be established and operated directly by the Philippine Mediation Center and will be fully-staffed through resources provided by the Judiciary;

Courts with no CAM in place will still have to collect mediation fees. 46

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

(2) Outsourcing of mediators while the PMC assumes operational management; or

(3) Outsourced delivery and operations management, i.e. delivery of mediation services including its operational management will be contracted out, while policy formulation and oversight functions remain with the Judiciary.

Currently, PhilJA considers Option 2 to be the most appealing among the three proposed arrangements. Option 2 replicates the current arrangement of the PMC and its units. This set-up, unlike Option 3, gives PhilJA more direct control over the PMC units’ operational management. At the same time, Option 2 allows for flexibility in terms of funding and manpower because mediators are outsourced and need not be regular employees of PhilJA, unlike in Option 1. However, based on CPRM’s study, once CAM is implemented under Option 2 in all trial courts nationwide, the Judiciary will still incur a deficit even with full collection of mediation fees. Even the P29 million48 existing Mediation Fund will not be enough to finance the establishment and operation of PMC units in all judicial areas nationwide, including the training of an additional 400-600 mediators who will serve in these units. Hence, PhilJA will have to explore variations of Option 2 for the nationwide implementation of CAM. Given the resource constraints, PhilJA will need to look into the possibility of rationalizing the establishment of PMC units throughout the country by limiting units to courts with extremely congested dockets and employing Judicial Dispute Resolution (JDR)49 in courts handling fewer cases. Although funding is a primary concern in the expansion of CAM, other related issues in case of a full roll-out should also be addressed, such as: Monitoring Monitoring of cases referred, mediated, and successfully mediated has been a source of problems in the past, but has seen significant improvement in the present. Regular and up-to-date reporting of

The amount of the Fund the time of the CPRM study. 48

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.

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referred, mediated, and successfully mediated cases is a must, not only for the sake of proper monitoring, but also for policy purposes. Standard definitions of concepts such as “successful mediation” and an enhanced data collection and management system in the PMC must be developed. Evaluation of Mediators

Training mediators is undoubtedly vital in CAM, but efficient assessment procedures are also needed to ensure that accredited court mediators meet required performance standards. Monitoring performance of mediators to ensure quality is a must. Performance-based evaluations and client feedback are necessary if PhilJA and the PMC want to ensure quality and competent mediation. PhilJA will have to determine the most appropriate tool for gathering relevant information on mediators and there are many such tools.50 Should PhilJA focus on mediator’s success rate (though of course, this focus on results does not produce a complete picture of the process or even the quality of the settlement)? Should simulated mediation be made as basis for assessment (though, of course, this tool does not demonstrate satisfactory prediction and it can be expensive)? There are self-assessment methods which are often used to expose reflective thinking patterns and give evidence of a mediator’s professional development. It has been found out in studies that at a later stage of their professional training, mediators develop the ability to define skills through constant self-reflection.51

Decreasing success rate A noticeable cause of concern in the implementation of CAM in the past is the decreasing success rate, from as high as 84 percent in 2002 down to 62 percent in 2006. This observation calls for an inquiry into: 1) the judges’ compliance with the Supreme Court’s directive to refer all mediatable cases; 2) the litigants and their lawyers’ confidence in the mediation process; and 3) the performance of mediators.52 The year 2007 posted a significant improvement and

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.

Ibid. 52

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there appears to be an upward trend in 2008, but there is a need for consistency in this regard. An accurate analysis of these reported rates should be done including comparison of additional data relating to the periods of time covered by the reports, the types of disputes involved, and other relevant factors. Thus, monitoring of cases referred, mediated, and settled becomes even more relevant. However, assessing the success of CAM from a purely statistical analysis of final dispositions may not always reflect its true worth. For example, the settlement of one case from one court docket may be perceived as having little impact on the court’s productivity. From an overall case management perspective, one settled case is one less case the court must process through its system. Thus, an efficiently managed CAM will enable the judges to focus their attention on those cases that cannot be amicably settled and must be decided in an adversarial process. Another way to determine the success of CAM is to ask the parties to the mediation process for their assessments. After the end of a mediation process, whether a settlement agreement is reached or not, the parties should be asked to complete a mediator and or/CAM evaluation questionnaire. PMC can develop a simple questionnaire that will, in the end, help the court evaluate CAM. The questionnaire should be able to generate data that will respond to questions such as:

• How many and what types of disputes are usually referred?

• What is the disposition time for each type of dispute? • Did the settlement reduce the number of cases in the

court’s docket? • Did the reduction in the court’s docket have any impact on

the efficiency and productivity of the courts? • Do the bench, bar and general public support CAM? • Do the bench, bar and general public consider CAM to be

beneficial to their interests? These questions will lead to some kind of cost-benefit analysis that will help prove whether or not CAM is beneficial overall. More than five years have elapsed since CAM was first implemented, so there must be sufficient cases to study to see whether certain case characteristics can reliably predict settlement. This can help PhilJA enact new policies that will automatically cover such cases.

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Mediation Core Values Even when mediation doesn’t produce a settlement, it doesn’t necessarily mean it is a failed mediation. Resolution doesn’t always have to imply a compromise agreement though that is one possibility of many valuable outcomes. Other positive outcomes include:53

• the ability to speak and to be heard; • the chance to talk about what may be irrelevant to lawyers,

but very important to the parties; • the narrowing of important issues; • clarity about what is most important to the parties; • freer, more unfettered conversation between the parties; • better understanding of those involved and their situations; • restoration of good faith; • strengthened reputation and stature; and • agreements based on genuine terms created by participants, both pecuniary and non-monetary.

54“Voice and choice” , these are the alternatives that mediation

promises and from these spring the core values of mediation. Perhaps, PhilJA and PMC should identify the core values of mediation beyond that of settlement. In this way, the beneficial effects of mediation can be registered even if the parties decide it best to continue the litigation after the mediation, and to simply allow the judicial system to determine the legal outcome. Specialization Practicing lawyers have complained about the lack of capacity of mediators to handle specialized cases such as those involving family law (e.g. separation of property, support, custody) cases. Considering that these cases have their own peculiarities and sensitivities, PhilJA has started the specialized training of mediators, at least in the area of family law. This ensures the competence and expertise of a mediator to handle a case. Future endeavors should look into the need for further specialization in areas like commercial law. 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.

Ibid. 54

Court-Annexed Mediation 39

Future Beckons: Future Directions

Never make forecasts, especially about future. Samuel Goldwyn 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. For example, it is tempting to say that the future beckons more extensive use of mediation (with the expansion of CAM and the rising cost of litigation); increased public awareness (with more cases referred and successfully mediated); greater sophistication among lawyers and judges (result of greater use of mediation); increased choice and expertise of providers (greater use of mediation means greater need for mediators, which, in turn, means greater competition among mediators and thus, greater competency); increased research and evaluation (a natural consequence); and most importantly, the beginnings of a culture shift for the courts (from a passive provider of trials to an active problem solver). There is an increasing tendency towards all the above; however, these may or may not fully happen as it is still too early to tell. It is safer to simply attempt to chart some routes that PhilJA and the PMC can take. The following is a menu of future prospects for Court-Annexed Mediation: (1) CAM’s transformation into a “Multi-Door Courthouse.” This

might be far into the future and might be a long-term goal for CAM; but it is part of the horizon which PhilJA and PMC can gaze into.

Court-Annexed Mediation 40

The “Multi-Door Courthouse” was first conceptualized in 1976 by Harvard Professor Frank Sander who proposed the assignment of certain cases to alternative dispute resolution processes or a sequence of processes, after screening in a Dispute Resolution Center. The idea is to have one courthouse with multiple dispute resolution “doors” or programs. Cases are referred to the appropriate door for resolution. The “doors” can be mediation, arbitration, case evaluation, or conciliation, among others. A multi-door approach will provide citizens with easy access to justice, reduce delay, and provide links to related services, making more options available through which disputes can be resolved.55 The following are two doors that PhilJA might consider:

• Court-Annexed Arbitration as one of the “doors” has been

discussed, judges have been trained, rules drafted, but it has not yet taken off the ground. Once the Supreme Court en banc approves the draft rules, a second “door” will be made available to the public.

• Should we stretch our imagination further and look into the

next generation of dispute resolution systems, we see in the horizon online dispute resolution or ODR. Also known as “online ADR,” “eADR,” “iADR,” “virtual ADR,” “cyber mediation,” and “cyber arbitration”, ODR is simply the virtual or online extension of ADR, the use of technology, particularly the Internet, to deliver traditional ADR services. The same neutrals with generally the same skill set as in off-line processes, can be used, with the added twist of using the medium of technology.

A range of communication methods can be utilized, including e-mail, instant messaging, online chat, threaded discussion (also known as bulletin boards), video and audio streams, and video conferencing. Other innovations include the use of language-independent multimedia services (MMS), a store-and-forward method of transmitting graphics, video clips, sound files, and short text messages over wireless networks, similar to SMS, push-to-talk technology, as well as the growing use of phones that can record sound, images, and video. Samples of ODR include the more well-known SquareTrade.com and ClickNSettle.com. In the United States, when disputes cannot be resolved through automation or when automated systems are not enough to resolve the dispute, parties have the option of bringing in an online

www.dccourts.gov/dccourts/superior/multi/index.jsp. 55

Court-Annexed Mediation 41

mediator who comes from a roster of mediators located throughout the US or the world.56

57In an ODR pilot supported by The Asia Foundation, a lot of

people were found to be skeptical of ODR out of a belief that the cold, impersonal realm of cyberspace cannot adequately accommodate human emotions and meet the needs of disputants as fully as face-to-face ADR processes. In a sense, the fear is that the human factor is lost in ODR. However, throughout the world, millions of people are seeking and receiving assistance in the resolution of their disputes online, through mediation, arbitration, facilitated dialogues, teleconferences, video conferences and hybrids, which integrate online technologies into traditional ADR processes. But at the time of the pilot, many were not ready for the technological innovations.

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.

The advantage of a multi-door courthouse is that cases are matched with the dispute resolution process, thereby, increasing the possibility for compromise. In multi-door programs in the US, for example, domestic relations cases are generally referred to mediation, whereas civil cases are referred to ADR and it is the parties, in consultation with their lawyers, who determine the appropriate ADR process. More varieties of ADR processes are

56 For more information on ODR, resources include “Colloquy: The Human Face of On-Line Dispute Resolution” by Melissa Conley Tyler and Susan Raines; “Keeping Pace: On-Line Technology and ADR Services” by David Syme; “Mediating in Your Pajamas: The Benefits and Challenges for ODR Practitioners” by Susan Raines; “Transforming Landscapes: Forging New ODR systems with a Human Face “ by Sanjana Hattotuwa; and Accreditation of On-Line Dispute Resolution Practitioners” by Melissa Conley Tyler and Jackie Bornstein; Conflict Resolution Quarterly, Vol. 23, No. 3, Spring 2006.

Cyberspace Policy Center for Asia and the Pacific 57

Court-Annexed Mediation 42

being invented or designed to fit the particular needs of disputes and parties.58

The very concept of a multi-door courthouse requires a revolutionary shift in the court’s conception of its role, from that of a “passive provider of trials” to an active problem solving case manager, or as in some courts, ‘to a catalyst in community change and conflict transformation.”59 Are our courts ready for this role?

(2) Another prospect is a Multiple-Step Negotiation/Mediation

(similar to some of the procedures supported by the JURIS project). In a multi-step procedure, a dispute that is not resolved at one level moves progressively to higher levels, with different mediators at each step. Unlike in the JURIS project (where all steps are handled by judges), the succeeding steps need not be handled by a judge (in order to save the judge’s time), but by retired members of the bench and bar whom the courts can employ on a part-time or volunteer basis. As former members of the judiciary and the bar, retired judges and lawyers provide some of the advantages of having sitting judges and experienced court employees serving as mediators. Depending on their background and professional reputation, retired judges and lawyers probably have considerable credibility among practicing lawyers and their clients, and should be able to command a high level of trust and cooperative interaction. If these retired members of the bench and bar are not compensated, the presumption of neutrality and confidentiality is higher. If they are trained as mediators, they will be able to generate the same degree of trust and confidence as mediation professionals.

(3) The use of CAM in small claims court is another possibility. It is

a well-known fact that mediation is used mostly in jurisdictions where there are small claims courts because cases are small and thus, suitable for mediation. As of this writing, no small claims court has been established yet but there is a plan to pilot these in selected areas sooner or later.60 The Supreme Court will just have to utilize existing PMC structures and processes to push for mediation in small claims courts.

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.

Ibid., pages 301-302. 59

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

(4) As Court-Annexed Mediation matures and prospers, there will also be a need to clarify the term mediation as it is currently used. In the beginning, the courts immediately embraced mediation without sufficient attention to, and clarity about, the goals and quality of the mediation process adopted. Is facilitative mediation the norm or are other forms of mediation allowed, such as evaluative and transformative mediation? Is mediation being confused with a settlement conference, thus the pressure on the mediators to settle? To answer these questions, PhilJA and PMC need to look into the core values of Court-Annexed Mediation as a program. It should be noted that ideally, mediation core values should extend beyond a mere settlement conference. Settlement, as mentioned earlier, should be seen as only one of many successful outcomes, which may include speaking freely and being heard, reducing hostility and confusion, and greater personal satisfaction, among others. When these terms are clarified, standards of practice and even ethical standards that should guide mediators will be better understood.

(5) Since the CAM program seems to be focused on settlement

anyway, it might as well deliberately address procedural and case management issues also. For example, the mediation conference can help parties simplify or clarify issues and resolve procedural matters in order to streamline the trial process when cases are not settled. Steps toward case management at the conclusion of a conference can improve the quality of briefs and oral arguments which can expedite the trial and decisions on the case. However, this innovation will require a different set of skills and processes for the mediators.

(6) Further, as court-annexed mediation becomes more sophisticated,

PhilJA might consider also exploring the possibility of an “Opt-In” approach. Currently, since court-annexed mediation is mandatory, the approach is that of an “Opt-Out” when the parties refuse to settle. Opt-in will ensure that those who want their cases mediated, even outside those directly mandated by the Supreme Court, will be allowed to do so. With this, the courts will be seen as true dispute resolution providers.

Court-Annexed Mediation 44

Conclusion As can be gleaned from the preceding discussion, it is impossible to predict the future growth directions of CAM with any degree of certainty. The most that can be said is that given proper stimulus, such as: the strengthening of mediators’ groups; the rise in popularity of ADR and CAM, in particular; and the further rise in the costs of litigation, among other factors; it may be likely that the level of usage of CAM will steadily increase in the years to come. Increased usage of CAM will then probably lead to a rise in referral and settlement rates, which, in turn will result in more judges, lawyers, and ADR practitioners gaining more experience, skills and knowledge in making effective use of CAM processes. 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. Perhaps, then, the prognosis of US Justice Sandra Day O’Connor will likely come true for the Philippine judiciary that “courts should not be the places where resolution of disputes begin. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.”

THE LAWYER’S PERSPECTIVE ON ADR IN THE COURTS AND ITS IMPLICATION ON THE PROFESSION

By:

Imelda D. Gidor

Bridges, not merely shields

Leading, bearing Never barriers

In search of truth, answers or protection, clients pursue lawyers. Whether the issue hinges on business ventures or on common community squabbles, the law profession constantly bridges distances between need and remedy, between right and obligation. Ideally, it is called upon to traverse the chasm between man and the promise of law. And even when the law itself holds no promise, as when it is prejudiced, biased or inadequate, some lawyers still cross over and go the distance towards reforms.

ADR IN COURTS: A LAWYER’S PERSPECTIVE

Lawyer: A vessel of solutions

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, Jr1:

“x x x may you find refuge and beacon in the erudite words of the UNESCO Constitution that ’since wars begin in the minds of men, it is in the minds of men that the defenses of peace must be constructed.’ x x x

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

ADR and Lawyers 46

when the battle is finally over and the hostilities come to a halt, when the adversaries decide x x x to amicably settle x x x, it is at this pristine and serene moment that we appreciate Shakespeare’s wisdom in his work, Henry IV:

‘A peace is of the nature of a conquest;

For then both parties nobly are subdued, And neither party loses.' “Truly, the triumph of justice and peace is a victory x x x that transcends barriers, shatters walls and builds bridges. It is a victory that benefits humanity x x x.”

Preferential use of ADR in courts: Reinforced, Encouraged

The Supreme Court consistently holds that delay in the administration of justice erodes and undermines people’s faith and confidence.2 In no uncertain words, it reiterates:

“Any delay in the administration of justice, no matter how brief, deprives the litigant of his right to a speedy disposition of his case. Not only does it magnify the cost of seeking justice. It undermines the people’s faith and confidence in the judiciary, lowers its standards and brings it to disrepute.”3

Indeed, the establishment and promotion of alternative modes of dispute resolution (ADR) mirror not only the urgency for a “better way” but also validates the consistent bias for speedy disposition, embodied in no less than the Constitution4, statutes5, the Rules of Court6 and Supreme Court issuances7. No less compelling is the affirmation of two Chief Justices.

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

Chief Justice Reynato S. Puno opined that: “I have no doubt that the ADR will succeed in our jurisdiction. Conciliation, mediation, arbitration, mini-trial, early neutral evaluation are devices more in accord with our culture roughly known as ‘ayusin ang hindi pagkakasundo.’ It is difficult to capture the essence of this culture but it speaks of our innate desire for harmony, for good neighbor relations, and it also communicates our disdain for discord and our dislike of disunity. x x x Unfortunately, our exposure to the western system of justice changed this culture of ‘ayusan’ and ‘pasensiyahan’. We were taught that disputes should be resolved in courts, in an adversarial manner, thru combatant lawyers and thru a procedure which a layman can hardly understand. Our courts have become bitter if not bloody battlegrounds, as venues where litigants engage in high cost combat, as arenas where the truth is often blurred by procedural technicalities, and where at the end of the day, justice not infrequently comes too late and too little. I like to think that the ADR will contribute to the revival of our culture of ‘ayusin ang gusot, habaan ang pasensiya’ in the higher interest of harmony in the community and good relations with our neighbors. x x x [S]tress in an adversarial system of justice has brought forth too great a volume of vile, too much guile in our practice of law. It is time to have less barbarism and more of ‘bayanihan’ in the way we settle our disputes.”8

For his part, Chief Justice Hilario G. Davide, Jr. expressed that:

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

ADR and Lawyers 48

“In a world where dynamism and innovation are expected and required of even the oldest of Government institutions in order for it to effectively serve an increasingly complex society, the court has continuously sought changes to its age-old structures so that judicial resources can be leveraged with significant impact on increasing access to justice. x x x [The] court’s agenda for judicial reforms x x x encapsulated in the Action Program for Judicial Reforms (APJR), includes x x x institutional development reforms and access to justice by the poor. One important innovation under the APJR is the introduction of the court-annexed mediation program being implemented by the Philippine Judicial Academy, which is an alternative dispute resolution (ADR) mechanism aimed at unclogging the court dockets. From the time of its inception, the court has tried different approaches to strengthen ADR practice in the country and improve the mechanics of the program which we have installed in Metro Manila, Cebu and Davao.”9

ADR systems and approaches: Relevance to the Legal Profession The members of the Bar had long been exhorted to exert every effort to assist in the speedy administration of justice10, 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:

Code of Professional Responsibility11

“Canon 1 – A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal processes.

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

“Rule 1.04 – A lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement. “Canon 4 – A lawyer shall participate in the development of the legal system by initiating or supporting efforts in law reform and in the improvement of the administration of justice. “Canon 12 – A lawyer shall exert every effort and consider it his duty to assist in the speedy and efficient administration of justice. “Rule 12.04 – A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse Court processes.” (italics supplied)

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:

“While lawyers owe their entire devotion to the interest of their clients and zeal in the defense of their client’s right, they should not forget that they are, first and foremost, officers of the court, bound to exert every effort to assist in the speedy and efficient administration of justice.” 13

However, for lawyers, the relevance of ADR systems as a practical “alternative” is validated not so much in mere speedy case disposal as in increased confidence in the administration of, and wider access to, justice. Thus, despite the ADR innovations in the recent years (ADR in 12 A. Ramos & M.R.De Dios vs. A.J. Pallugna, Adm. Case. No.5908, Oct. 25, 2004

13 same as footnote 10

ADR and Lawyers 50

courts), such as enhanced pre-trial14, court-annexed mediation15, or similar mechanisms16, which, in effect, reinforce the Civil Code’s17 long-established preference for amicable settlement and compromise agreements, adherence to ADR remains highly dependent on a lawyer’s preferred strategy. While a client is entitled to an alternative or choice, the exercise of this choice is usually left to the counsel’s discretion. Most clients simply toe the line. Apparently, the involvement of lawyers impacts greatly on the promotion, development and success of ADR.

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. ADR in courts: Lawyer Intervention Essential

The country’s legal system is definitely strengthened by ADR mechanisms in courts, such as pre-trial/enhanced pre-trial, judicial dispute resolution, statutes’ preference for settlement18 or appeals mediation. In civil cases (including civil cases instituted with criminal cases), the choice not to litigate, the option to settle, the venue to negotiate, is practically open across all stages of the case prior to finality of judgment. From the inception of the case until judgment is 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 settle19. 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:

“In civil cases, judges are also required to take advantage of the pretrial conference to arrive at settlements and compromises between the parties, to ask the latter to explore the possibility of submitting their cases to any of the alternative modes of dispute resolution, and at least to reduce and limit the issues for trial.”20 x x x [T]he holding of a pre-trial conference was the best-suited solution to the problem as this stage in a civil action is where issues are simplified and the dispute quickly and genuinely reconciled. By means of pre-trial, the trial court is fully empowered to sway the litigants to agree upon some fair compromise.”21 (italics supplied)

While anyone can mediate or negotiate, even non-lawyers, the importance of relying on one’s legal counsel cannot be ignored. The varied outcome of ADR processes in courts, (e.g., satisfaction of

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

ADR and Lawyers 52

claims, compromise agreement, limitation of issues, partial judgment [partial compromise], withdrawal of claims/counterclaims/actions, dismissal of civil liability in criminal cases or even execution of settlements), have the force and effect of law and thus, affect legal rights and obligations. Once approved, settlements forged, turn into judgment of the court. Naturally, incidents relative to execution, enforcement, compliance, and actual satisfaction/payment are reliant on the dictates of the law. Thus, application and knowledge of the law, then, are never inconsistent with ADR undertakings. Indeed, lawyers, far from being unwanted, are needed in all facets of ADR work.

ADR IN COURTS: IMPACT ON LEGAL PROFESSION ADR intervention in court proceedings changed the face of solutions. Now, it is catered to make-up for litigants’ constraints. Now, it is tailored according to relative capacity and mutual interests. With ADR’s wider and more varied approaches, it is easier, now more than ever, for lawyers to create a kaleidoscope of answers, more feasible and responsive to respective limitations and capacity. By so doing, the lawyer can deliver better and explore possibilities beyond the limits of an often protracted court case. The Supreme Court, in its Guidelines for Parties’ Counsel in Court Annexed Mediation Cases22, shares the vision it holds for the law profession in the words of David R. Brink:

“I envision the day when attorneys will be viewed as counselors, problem solvers, and deliverers of prompt, appropriate and affordable justice”

ADR in Courts: Re-shaping the culture of the legal profession It is often said that ADR challenges lawyers to take in new, changing roles. However, these “new” roles or skills are the same ones inherent in the profession. Apart from being a court warrior, a lawyer has always been known as an advocate or a consultant. In the 1991 landmark case Cayetano vs. Monsod23, which illustrates practice of law as client counseling, technical advice, documentation, litigation or negotiation and documentation, the Supreme Court 22 A.M. No. 04-3-05-SC

23 G.R. No. 100113, 3 Sept. 1991

ADR and Lawyers 53

further clarifies the nature of legal work as, in the words of Charles W. Wolfram24:

“x x x work will require the lawyer to have mastered the full range of traditional lawyer skills of client counseling, advice-giving x x x and NEGOTIATION. And increasingly lawyers find that the new skills of evaluation and MEDIATION are both EFFECTIVE for many clients” (emphasis & italics supplied)

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.

For instance in court-annexed mediation, the Supreme Court, in its Guidelines for Parties’ Counsel in Court Annexed Mediation Cases25, exacts a reorientation of attitudes and roles:

“Re-orientation of Attitudes towards Dispute

Litigation is based on the attitude that disputes involve rights and remedies that are fought through the adversarial system of justice for which lawyers have been specially trained for. When litigation is shifted to mediation, a different attitude is called for that would view the dispute as a problem-solving opportunity for lawyers to assist the parties resolve their differences in ways that are productive for their future lives.

Re-orientation of Lawyer’s role in Mediation 24 “Modern Legal Ethics”, West Publishing Co., Minnesota, 1986

25 A.M. No. 04-3-05-SC

ADR and Lawyers 54

Re-orientation of Lawyer’s role in Mediation It is important to stress that the lawyer’s role as counsel for a party radically changes as the mode of dispute resolution shifts from adjudication to mediation. The premise must be accepted that counsel must drop his combative role in adjudication and view his new role in mediation as a collaborator with the other counsel in working together toward the common goal of helping their clients resolve their differences to their mutual advantage. Whereas he is clearly dominant in judicial trials, he must now accept a less directive role to allow the parties more opportunities to craft their own agreement. He must shift gears and accept the role of an adviser or consultant.”

ADR in Courts: A Paradigm Shift Moving from Positions to Interests26

To realize maximum gains, the contours of ADR philosophy invite lawyers to heed the call for a paradigm shift, by refocusing on parties’ interests, not solely on their rights. The latter set of criteria tightly straps litigants to their respective positions. But interest-based analysis equips parties to discover common interests lurking below apparent differences. The movement from position to interests increases the prospect of parties finding a field of MUTUAL AND IDENTICAL INTERESTS. Expressed in priorities, expectations, concerns, fears or values, these mutual interests can facilitate collaborative efforts towards getting to acceptable solutions.

For instance, in collection cases, payment of principal and interests is ideal. But where debtor’s limited capacity faces off with creditor’s need for cash, a settlement of lowered interests and regular installments may prove mutually helpful. 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

ADR Systems & Approaches: Impact on lawyer-client dynamics Many lawyers and clients bask in the success of ADR. Clients appreciate prompt and appropriate actions, and a happy client always reinforces good lawyer-client relations. The incentive to make ADR work is understandably appealing to both, for several reasons.

First, it is resource-efficient.

(i) Time is gold: Probably one of the scarcest resources today, time is almost incapable of pecuniary estimation. When proceedings are fast, clients are satisfied. Litigants can lessen, lower or even forego some of their demands provided their claim is satisfied promptly, or provided they are relieved of long months or years of litigation.

Perhaps ADR’s best contribution is that it is truly an alternative to time-intensive court hearings. In effect, lawyers are afforded more opportunities to research, cater to more clients, or even litigate cases not covered by ADR mechanisms.

Also, the prospect of appeal, multiple appeals, or any other intervening cases, within the main case (e.g., elevation of contested interlocutory orders), are dispensed with, once a compromise is reached. This accounts for a lot of savings, both in time and resources. (ii) Opportunity Cost: Often taken for granted, opportunity cost is heavily incurred in long, protracted court duels. Time away from work is income lost. Time away from school is knowledge lost. Time away from business puts profits at risk. All these are incurred as often as litigants go to court, or prepare for trial. Fortunately, ADR lessens these costs. (iii) Cost-efficient, Appeal cost barred: Aside from lesser exposure to months or years of accruing lawyer’s fees, speedy results also mean less

ADR and Lawyers 56

transportation expense and less processing expense (e.g., legwork, photocopying, transcript fees and evidence presentation). Moreover, since a court-approved compromise partakes of a final judgment, any cost pertinent to appeal proceedings is immediately barred. (iv) “Settlement Fee”, Restructuring Attorney’s Fees, Negotiation Clause: Client cost-savings ultimately ripen into increased trust and confidence in his counsel’s competence and integrity. This, of course, attracts more clients. Faster case turn-over does not have to mean reduced or foregone income. A restructuring of attorneys fees in the Retainer Agreement can include a Settlement Fee payable upon amicable settlement, or such other clauses as a Negotiation Clause or ADR Clause.

Second, it facilitates case and client management.

(i) Turning the wheels of law practice: To deliver results is to manage a client’s case well. Determined by fair and acceptable outcome, effective case management turns the wheel of law practice. Given the myriad nature of people’s troubles and ever-changing needs, ADR allows the lawyer’s palette to open wide for more shades and hues to closely approximate the client’s preferred legitimate landscape; not the lawyer’s, not the court’s. For it is true that only the client can fully comprehend and feel his needs, fears and sentiments. Indeed, these are sometimes overlooked by lawyers and courts, often without malice, in the intricacies of litigation. (ii) Transcending language barrier, More opportunity for expression: ADR emboldens litigants to transcend the language barrier in formal adjudication processes. Consensual exploration of issues encourages litigants to talk freely in a manner that ratifies his/her participation in the entire process of problem-solving. With simpler processes and more opportunities for

ADR and Lawyers 57

expression and communication, the attorney-client relationship is strengthened. (iii) Improved relations: At best, ADR brings fulfillment as it restores trust and relationships. Again, fulfilled clients bode well for the lawyer’s practice and reputation.

Third, the interest of justice is served.

(i) ADR bridges the gap between law and reality. While the motive of any law is beyond reproach, it is sometimes inadequate or insufficient to address each and every situation in the broad spectrum of conflict, problems and suffering. When the law is imperfect, when the law is not responsive, clients are most helpless. ADR, with its varied approaches to conflict resolution, can assist lawyers to bring in workable solutions. (ii) ADR closes the gap between law and culture. Laws are meant to mirror a people’s culture. Many fall short of this standard, however. A highly divisive trial often worsens the situation. ADR mechanisms can aid lawyers to see through deep-seated cultural biases in the hope of unearthing shared values like family, integrity, honor, trust and respect for elders. (iii) ADR promotes guided self-determination: With the assistance of counsel, parties-litigants are afforded the privilege of self-determination, such as to decide on the outcome most acceptable under the circumstances. This being the case, delays or issues on execution of judgment (by compromise agreement) are unlikely to disturb compliance and enforcement. (iv) Access to justice by the marginalized, Forging linkages between lawyers & community: In view of the above, access to and administration of justice are improved. The savings in resources lead to stronger trust in the justice system and in the integrity of lawyers as well.

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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:

“x x x In the afterglow of all these happy developments, let me inset, even if edgewise, a word of caution. The ADR, for all its promise, is no magic formula, not a cure-all to some of the well-perceived shortcomings and shortfalls of our regular system of justice. The ADR may no longer be an inchoate concept, no longer a dismissible idea in fetus form but it still has to develop a lot of undergrowth of roots and overgrowth of branches to be fruitful to our people. The stated goals…are speed, economy and justice in the resolution of disputes. These are elusive goals for there will always be honest differences of opinion even among men of goodwill on what road and route to take to achieve the objective….”27

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

Salvador S. Panga, Jr. ∗

I. Introduction Judicial dispute resolution (JDR), as implemented in the Philippines, is a process by which a judge attempts to facilitate settlement between parties undergoing litigation after a similar effort by a court-appointed mediator has failed. Traditionally, judges have been seen as stern, aloof and impartial dispensers of justice acting in accordance with a strict, rights-based adversarial system. The JDR program marks a radical departure from this concept, recasting the role of judges from magistrates to mediators, placing greater emphasis on value creation, joint problem-solving, option generation and the improvement of the parties’ relationship, than on the ascertainment of the parties’ respective rights and obligations. JDR was introduced in 2004 as one of the initiatives of the mediation/ADR strengthening component of the JURIS Project,1 and as an adjunct to the court-annexed mediation (CAM) program that had earlier been put in place by the Supreme Court in all trial courts. It was initially pilot-tested in the first- and second-level courts in Pampanga and Bacolod, and eventually introduced in the trial courts of Baguio/Benguet, Cagayan de Oro and San Fernando, La Union, and their adjacent municipalities.2 By the end of 2007, the program ∗ 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.

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was in place in some 156 trial courts in these five pilot sites. During that period, approximately 5,0003 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. In August 2007, the JURIS Project commissioned this research team4 to undertake an evaluation of the JDR program, which was then in its third year in Bacolod and Pampanga, and nearing the completion of its first year in Cagayan de Oro, Baguio and San Fernando, La Union. Among other things, the researchers were asked to ascertain the effectiveness of the program in terms of meeting its goal of increasing the volume of case disposition. The team was also directed to identify the necessary factors to make the program effective and recommend how the program could be further strengthened, if and when the Supreme Court decides to extend it to other areas. Finally, the team was asked to determine the extent of approval or disapproval by the end-users of JDR, in terms of value, fairness, acceptability and other similar factors. This article discusses the current state of JDR in the Philippines, and summarizes the research findings and recommendations with regard to the JDR program. II. The JDR Process The authority of a judge to facilitate a settlement between parties has long been recognized under the pre-trial provisions of the Revised Rules of Court of the Philippines. Specifically, Rule 18 provides that one of the purposes of the pre-trial is to consider the possibility of amicable settlement.5 However, prior to the introduction of the JDR Guidelines, many judges were apprehensive that any active attempt on their part to facilitate settlement may lead to a perception of bias or undue interest that may prompt a party to seek their disqualification, or worse. Consequently, “considering the possibility of an amicable settlement” frequently meant little more in practice 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 “

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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 Recognizing this apprehension, and in order to underscore the importance of the settlement process, the Supreme Court issued an Administrative Order entitled “Revised Guidelines for the Implementation of an Enhanced Pre-Trial Proceeding under the JURIS Project, as Amended”, setting up a second-tier mediation system to be conducted by the judges in five designated pilot court areas in the Philippines. 7 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 cases8 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 unsuccessful9, 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 e) the civil aspect of Estafa (Swindling), Libel and Theft.

9 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

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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 Guidelines contain no specific limitation or mandate on the manner by which a judge may conduct JDR. Thus, a judge is perfectly free to adopt any approach or settlement technique he may deem appropriate, for the purpose of encouraging the parties to settle. In fact, the Guidelines specifically permit the JDR judge to use mediation, conciliation, neutral evaluation or any combination of the three processes to achieve settlement. 11

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.)

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III. JDR training

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

IV. The current state of JDR

A. Research methodology

In designing the research methodology, the team recognized that any evaluation of the usefulness or success of the JDR program would require an inquiry into both the actual case disposition rates as well as the views of the end-users regarding the program. Accordingly, the team decided to evaluate the JDR program in terms of six indicators, namely: effectiveness; efficiency; stakeholder satisfaction; program organization; service delivery; and program quality. The research was conducted in three stages. The first stage involved the assembly, collection and analysis of existing program data14, both for purposes of establishing a baseline for the study as well as to obtain concrete empirical indicators of specific program accomplishments15. The

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.

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second stage consisted of the generation of new data through the use of survey instruments,16 key person interviews and focus group discussions17. The third stage involved field observation visits18 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.

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implementation of the program, generate a qualitative sense of the experience, and validate some of the survey or focus group discussion data obtained. Stage 1 was keyed towards assessing the first two indicators, i.e., program effectiveness and efficiency. Stages 2 and 3 were intended to measure, both quantitatively and qualitatively, stakeholder satisfaction, program organization, service delivery and program quality.

Research Findings

1. Case disposition figures

As of the end of 2007, the case disposition statistics of the JDR program19 (excluding pending JDR cases), as indicated in Table 1 below, show uneven disposition rates among the participating courts, ranging from a low of about 28% in Pampanga and Baguio, to a high of approximately 68% in Bacolod. However, overall, the settlement rate for all the participating courts is approximately 47%. This means that of the roughly 3,500 cases that had undergone JDR by the end of 2007, almost half were successfully settled by the judges. Considering that JDR is a second-tier ADR process that handles presumably the more difficult, complex or intractable disputes that a trained mediator had already failed to settle, the positive numbers generated by the program were certainly significant by any standard. 20

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.

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TABLE 1 JDR Case Disposition Rates

Pilot Site

No. of cases

referred to JDR21

(1)

No. of cases

referred to JDR but no

JDR took place22

(2)

No. of cases

actually submitted to JDR (1)-(2)

No. of cases settled

through JDR (4)

No. of cases that

refused to

settle (5)

Settlement rate (4) /

(4) + (5)

Pampanga 23

736

26

710

199

511

28%

Bacolod/Negros Occidental24

1151

171

980

626

354

63.87%

Baguio/Benguet 25

790

105

685

192

493

28%

San Fernando, La Union 26

102

180

282

102

180

36.17%

Cagayan de Oro/ Misamis Oriental27

721

69

652

275

377

42.1%

Total

3500 28

551

2949

1394

1915

47.27%

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.

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2. Stakeholder views on the JDR program

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:

The stakeholders perceive JDR as a useful and effective means of resolving court disputes.

Despite prevailing opinion among stakeholders that it is appropriate for judges to be mediators, there remains some ambivalence on the part of judges and lawyers that is probably rooted in a belief that a judge’s role is to decide cases on the merits, and not to facilitate settlements.

JDR judges and the JDR process are widely perceived to be fair.

The stakeholders are generally satisfied with JDR outcomes.

JDR is perceived to have resulted in improved relationships between the disputing parties.

All stakeholder groups are willing to use JDR in the future.

JDR is perceived to be time and cost-efficient.

JDR program design and structure meet the goal of reducing the courts’ caseload.

The current directives, guides and standards governing JDR are adequate.

The stakeholders believe that the JDR program is well-designed and managed.

Judges are viewed as effective in conducting JDR.

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.

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Judges, and to a lesser extent, lawyers and litigants, believe that JDR gives the parties the opportunity to discuss creative options for settling disputes.

Judges are ambivalent on case appraisal and evaluative techniques.

The stakeholders believe that it is the duty of the judge to neutralize power imbalances during JDR.

Litigants and lawyers are satisfied with the quality of lawyers’ performance in JDR despite concerns on the part of some judges.

All stakeholder groups strongly believe that participants fully understand the JDR process.

Although perceived to be satisfactory in its present form, the stakeholders support continuing the JDR program with modifications.

The stakeholders strongly endorse implementation of JDR outside the pilot areas.

The foregoing findings were confirmed by the focus group discussions and field observations with the following additional insights:

Due to the more complex nature of cases handled in the second-level courts, it is more difficult to achieve the same level of success in the second-level courts than in the first-level courts.

Many judges consider JDR as superior to CAM because of the following perceptions: (i) the CAM program has been losing its good mediators because of low compensation; (ii) CAM mediators lack the authority and moral ascendancy of a judge which is helpful in facilitating settlement; (iii) the fact that many CAM mediators are not lawyers hinders their understanding of disputes; and (iv) mediators who are non-lawyers cannot command the respect of lawyers and litigants. Interestingly, lawyers and litigants largely agreed with the foregoing observations.

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While most agree that it is appropriate for judges to act as mediators, some judges still believe that time spent doing JDR is better spent deciding cases.

Many express the view that although the JDR program is well-designed and managed, its success or failure depends greatly upon the performance of the judge. Accordingly, advanced training of judges is of fundamental importance to the success of the JDR program.

There is strong support for the creation of specialized courts for JDR.

ii. Discussion of Survey Findings Questions in the survey29 fall under four general categories, namely: (a) stakeholder satisfaction; (b) program organization; (c) service delivery; and (d) program quality. Respondents indicated their degree of agreement or disagreement with the statements in the survey by encircling a number from 1 (strongly disagree) to 4 (strongly agree). In areas where the success indicator is measured by more than one question, the response was expressed in terms of the mean of all responses to the question, with higher scores indicating greater agreement.

STAKEHOLDER SATISFACTION In order to measure stakeholder satisfaction, the survey included questions on judges’ and lawyers’ perceptions of the usefulness of JDR in resolving disputes and reducing the court’s caseload;30 stakeholders’ perception of the fairness of the judge and the JDR process;31 stakeholders’ satisfaction with the outcome of JDR;32 the impact of JDR on relationships between the parties;33 stakeholders’ willingness to use JDR in the future;34 stakeholders’ perceptions on 29 The survey questionnaires for the judges and lawyers were all drafted in English. The questionnaires

for the litigants were originally drafted in English but subsequently translated to the local dialects with the help of local translators prior to distribution in the pilot sites. Thus, the team used Tagalog questionnaires for the Pampanga litigants; Ilonggo questionnaires for the Bacolod litigants; Ilocano questionnaires for the Baguio and La Union litigants (although the team reverted to the English questionnaires in Baguio when advised that the litigants in the area preferred to answer the English version); and Visayan questionnaires for the Cagayan de Oro litigants.

30 Judges Questionnaire (JQ) #21, 22 and 24; Lawyers’ Questionnaire (LaQ) # 21, 22 and 24. 31 JQ# 5,8,9 and 16; LaQ# 5,8,9 and 15; Litigants’ Questionnaire (LiQ) #5,8,9,15. 32 JQ#17, LaQ#16 and LiQ#16. 33 JQ#20, LaQ#20 and LiQ#19. 34 JQ#32, LaQ#31 and LiQ#26.

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cost-effectiveness and speediness of the JDR process;35 and the impact of JDR upon lawyers’ incomes.36 The survey results showed the following findings.

1. Stakeholders perceive JDR as a useful and effective means

of resolving court disputes.

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

Region

Respondent

Means given, if aspect is measured by more than one survey question

All regions 39 Judge 3.02 Lawyer 2.98

Litigant

2. Despite the prevailing opinion among stakeholders that it is appropriate for judges to be mediators, there remains some ambivalence on the part of judges and lawyers that is probably rooted in a belief that a judge’s role is to decide cases, and not to settle them.

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.

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All stakeholders agree that it is appropriate for judges to be mediators, with 79.2% of the judges, 85% of the lawyers and 91.5% of the litigants agreeing to this proposition. Still, the answers of judges and lawyers in the pilot areas with the most JDR experience40 to two other questions in this section, betray some ambivalence with respect to JDR. Almost a third of the judges in Pampanga and Bacolod disagreed that it is appropriate for judges to serve as mediators. Similarly, some lawyers in the area also disagreed (17% in Pampanga and 20% in Bacolod). More telling is the response of judges and lawyers to the proposition that JDR takes away from judges the time that is otherwise better devoted to deciding cases. This was, in fact, an oft-repeated sentiment in focus group discussions. The survey response indicates that the belief persists that judges should spend their time deciding cases, precisely because they are judges. A remarkably high percentage of judges (70% in Pampanga and 67% in Bacolod) and lawyers (56% in Pampanga and 70% in Bacolod) agreed. Table 3 is a breakdown of responses to the proposition that it is appropriate for judges to serve as mediators.

TABLE 3 Appropriate for judges to be mediators despite some

ambivalence on the part of judges and lawyers

Region

% of responses given if aspect is measured only by one survey question 1: strongly disagree 2: disagree 3: agree 4: strongly agree

1 2 3 4 All regions Judge 5.5 15.4 39.6 39.6

Lawyer 2.5 12.5 45 40 Litigant 2.8 5.6 54.9 36.6

3. JDR judges and the JDR process are widely perceived to be fair. The perception of the fairness of judges and the JDR process is generally very strong among all stakeholders groups across all regions (Table 4). 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. 40 Pampanga and Bacolod City, where JDR has been in place since 2004.

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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.

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TABLE 4 JDR and JDR judges are perceived to be fair

Region

Respondent Means given, if aspect is measured by more than one survey question

All regions Judge 3.49 Lawyer 3.29 Litigant 3.19

4. Stakeholders are satisfied with JDR outcomes. 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)

TABLE 5 Stakeholders are generally satisfied with JDR outcomes

Region

Respondent % of responses given if aspect is measured only by one survey question 1: strongly disagree 2: disagree 3: agree 4: strongly agree

1 2 3 4 All regions Judge 0 3.6 54.2 42.2

Lawyer 1.3 10.3 57.1 31.4 Litigant 6.8 7.6 51.6 34.1

Notwithstanding the positive responses with respect to JDR outcomes, it must be borne in mind that satisfaction is partly shaped by expectations and low expectations from the process sets a low bar for satisfaction. While it is reasonable to consider satisfaction with the outcome as an indication that the settlement is sufficiently aligned with the parties’ interests, it is, nevertheless, possible that parties agreed to a settlement for other reasons such as mistrust of the courts combined with pragmatism, a desire to buy peace, or lack of awareness of other more suitable options. If one’s expectation is a rights-based settlement, one may be satisfied with a settlement that may yield somewhat less than what the law provides, even if it does not go far enough in accomplishing the parties’ interests.

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5. JDR is perceived to have resulted in improved relationships. There is a strong perception of improved relationships resulting from JDR, although it is notable that this perception is more prevalent and emphatic among judges than among the litigants themselves. In response to the statement that JDR resulted in improved relationships, both judges and litigants expressed agreement (88.8% and 77.8% respectively) but, while 46.3% strongly agreed with the statement, only 26.7% of litigants strongly agreed. Also notable is the apparent disenchantment among Baguio litigants, 45.5% of whom expressed dissatisfaction.

TABLE 6 JDR is perceived to have resulted in

improved relationships

Region Respondent % of responses given if aspect is measured only by one survey question 1: strongly disagree 2: disagree 3: agree 4: strongly agree

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

6. All stakeholder groups are willing to use JDR in the future.

Not surprisingly, all stakeholder groups overwhelmingly expressed willingness to use JDR in the future with judges at 83.5%, lawyers at 93.8% and litigants at 89.2%. What is remarkable is the percentage of litigants willing to use JDR in the future remains very high despite a large percentage from Baguio (46.2%) expressing unwillingness. Equally remarkable is that greatest support comes from lawyers despite the popular conjecture that lawyers will oppose JDR out of concerns over possible reduction in lawyers’ fees occasioned by early settlement of cases rather than going through a full-blown trial. The conjecture itself is not firmly based in fact, as roughly only half of the lawyers reported a decrease in income on account of JDR, pointing to adjustments in fee structure already being made by the legal community.

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TABLE 7 Strong indications of willingness to use JDR in the future

Region Respondent % of responses given if aspect is

measured only by one survey question 1: strongly disagree 2: disagree 3: agree 4: strongly agree

1 2 3 4 All regions Judge 2.4 14.1 44.7 38.8 Lawyer 0.0 6.2 50.6 43.2 Litigant 3.1 7.0 48.1 41.1

7. JDR is perceived to be time and cost efficient.

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

Region

Respondent Means given, if aspect

is measured by more than one survey question

All regions Judge 3.45 Lawyer 3.32 Litigant 3.22

PROGRAM ORGANIZATION The evaluation of program organization is based upon survey questions pertaining to: stakeholders’ opinions on whether or not the design of the JDR program meets the goals of reducing the caseload of courts44; the adequacy of directives, guides and standards that are

44 JQ#31 and LaQ#30.

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in place45; and whether or not the JDR program is well-designed and managed46.

8. JDR program design and structure meet the goal of reducing the

caseload of courts. 9. The current directives, guides and standards governing JDR are

adequate.

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). However, in Pampanga and Bacolod, judges registered a noticeably higher level of disagreement with the proposition that the program is adequately constructed to meet its goals.47 In the same areas, judges likewise registered a noticeably higher level of disagreement to the proposition that there are sufficient procedures/guidelines in place, to guide participants on the manner that JDR cases should be conducted48. A quarter of the judges in Pampanga and Bacolod also disagreed with the proposition that the program directives, guides, and standards provided sufficient guidance to enable judges to appropriately administer the program. Because of their longer experience in JDR implementation, their opinions merit further examination particularly on the specific areas that they believe are inadequate.

TABLE 9 JDR program design and structure meets

goal of reducing caseload

Region Respondent % of responses given if aspect is measured only by one survey question 1: strongly disagree 2: disagree 3: agree 4: strongly agree

1 2 3 4 All regions Judge 3.5 12.0 63.9 26.5

Lawyer 1.3 9.7 61.9 27.1 Litigant

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.

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TABLE 10 Directives, guides and standards governing JDR

perceived to be adequate

Region Respondent Means given, if aspect is measured by more than one survey question

All regions Judge 2.90 Lawyer 2.97 Litigant 3.08

10. Stakeholders believe that the JDR program is well-designed and

managed.

There is little disparity in the opinions of all stakeholders across all regions with respect to the design and management of the program. The JDR program is seen as well-designed and managed (Table 11). The level of disagreement of judges to the proposition is somewhat low but nevertheless, reflects some support for a redesign or some modifications of the JDR program.

TABLE 11

JDR program seen as well designed and managed

Region Respondent Means given, if aspect is measured by more than one survey

question

All regions Judge 3.01 Lawyer 3.08

Litigant 3.27

SERVICE DELIVERY Service delivery is addressed in the survey through questions on: the effectiveness of judges in conducting JDR proceedings49; the quality of lawyers’ performance in reaching out to other parties, looking beyond legal positions, and creating options50; and the participants’ understanding of the JDR process.51

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.

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11. Judges are viewed as effective in conducting JDR.

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 lukewarm52. 13.Judges are ambivalent on case appraisal and evaluative techniques.

The responses of judges relative to the techniques they employ reflect the findings on the perception of fairness and judges’, which revealed some ambivalence with respect to the appropriate approach for conducting JDR. There was substantial disagreement with respect to the proposition that “the JDR judge usually tells me or my client his opinion on the merits of our case if it went to trial”. For instance, in Pampanga, only 35% of judges agreed while in Bacolod, 80% of judges agreed. This statistic may indicate a preference for facilitative mediation by Pampanga judges and evaluative mediation by Bacolod judges. Yet, Pampanga judges were split down the middle with respect to whether it is appropriate for the judge 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.

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.

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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

Region Respondent % of responses given if aspect is

measured only by one survey question 1: strongly disagree 2: disagree 3: agree 4: strongly agree

1 2 3 4 Judges 1.3 6.3 43.8 48.8 Lawyer 0.6 8.9 53.2 37.3 Litigant 2.7 10.2 43.5 43.5

14. Stakeholders believe it is the duty of the judge to neutralize power imbalances during JDR. There is strong support for a judges’ exercise of power to neutralize power imbalances that may stand in the way of a settlement that is in accordance with the parties’ interests (Table 13). Litigants highly approve of the neutralization of power imbalances but 15.2% of judges and 21.4% of lawyers disagreed. In practice, identification and neutralization of power imbalances is much more difficult than in theory because, in any given situation, there may be numerous power imbalances and a judge cannot determine with mathematical precision which imbalance is relevant to the settlement and the means of neutralizing it. When a judge does attempt to neutralize power imbalances, there is a danger of inviting a perception of partiality.

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TABLE 13 Judges should neutralize power imbalance

Region Respondent % of responses given if aspect is

measured only by one survey question 1: strongly disagree 2: disagree 3: agree 4: strongly agree

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

15. Stakeholders are satisfied with the quality of lawyers’ performance in JDR despite concerns on the part of some judges.

The quality of lawyers’ performance similarly meets approval by all stakeholders across all pilot areas, although the overall approval is appreciably less than that attained by judges. The mean scores given by lawyers and litigants indicate healthy approval (3.19 and 3.13 respectively), but judges appear less satisfied (2.71). One possible reason is that many judges feel that lawyers are generally unable to look beyond legal positions in exploring settlement options that would address their clients’ real interests.53 Many judges are not convinced that lawyers are able to reach out to the other party in a manner that encouraged the latter to reciprocate and be reasonable.54

TABLE 14 Positive view on the Quality of Lawyers’ Performance

Region Respondent Means given, if aspect

is measured by more than one survey question

All regions Judge 2.71 Lawyer 3.19 Litigant 3.13

16.All stakeholder groups strongly believe that participants fully understand the JDR process.

All stakeholder groups strongly believe that participants fully understand the JDR process (Table 15). Most stakeholders agree or 53 26% in Pampanga, 56% in Bacolod, 50% in Baguio, 50% in CDO. 54 35% in Pampanga, 43.5% in Bacolod, 50% in Baguio, 40% in CDO.

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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

Region Respondent Means given, if aspect

is measured by more than one survey question

All regions Judge 3.48 Lawyer 3.39 Litigant 3.24

PROGRAM QUALITY The survey solicited the stakeholders’ views on whether or not the JDR program should be continued in its current form55; implemented outside the pilot court areas56; or whether it should be continued with certain modifications.57

17. Although perceived to be satisfactory in its present form, stakeholders support continuing the JDR program with modifications.

18. Stakeholders strongly endorse implementation of JDR outside the pilot areas.

Continuation of the program in its current form appears to have the support of lawyers and litigants (80.7% and 85.7%); in fact, the supports appears generally higher although weighed down by comparatively low approval rates in Baguio (70.6% for lawyers, 58.4% for litigants). In contrast to the support of lawyers and litigants for the continuation of the program in its current form, support of judges seems more lukewarm at 74.4% (Table 16). Notwithstanding the stakeholders’ expression of support for the continuation of the program in its present form, it appears that judges and lawyers are eager to embrace some modifications (90.3% and 90.9%), while litigants agree to a lesser extent (75.8%) (Table 17). 55 JQ#35, LaQ#34, LiQ#29. 56 JQ#36, LaQ#35, LiQ#30. 57 JQ#37, LaQ#36, LiQ#31.

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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

Region Respondent % of responses given if aspect is measured only by one survey question 1: strongly disagree 2: disagree 3: agree 4: strongly agree

1 2 3 4 All regions Judge 1.2 24.4 43 31.4

Lawyer 1.3 17.9 56.4 24.3 Litigant 6.8 7.5 47.4 38.3

TABLE 17 Judges and Lawyers nevertheless welcome

program modifications

Region Respondent % of responses given if aspect is measured only by one survey question 1: strongly disagree 2: disagree 3: agree 4: strongly agree

1 2 3 4 All regions Judge 2.4 7.3 48.8 41.5 Lawyer 0.7 8.5 55.6 35.3 Litigant 5.8 18.3 42.5 33.3

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TABLE 18 Stakeholders agree on implementation outside pilot areas

Region Respondent % of responses given if aspect is

measured only by one survey question 1: strongly disagree 2: disagree 3: agree 4: strongly agree

1 2 3 4 All regions Judge 1.2 9.4 45.9 43.5

Lawyer 1.2 8.1 47.2 43.4 Litigant 3.6 6.6 46 43.8

V. Program Observations and Recommendations Based on the foregoing findings, the research team made the following recommendations and observations to the JURIS Project: 1. As the use of JDR is useful and effective in resolving disputes, the implementation of the JDR program should be continued.

There is a consensus among all stakeholders that the JDR program is working well, particularly at the first-level courts, and is a useful and effective means of resolving disputes and reducing the caseload of courts. This is borne out by the quantitative analysis as well, with data showing that case disposal at the first-level courts during the JDR period consistently exceeded the pre-JDR period case disposal. Before the second-level courts, the impact of JDR is still unclear, and optimism about its potential is accompanied by some skepticism as well. Given, however, the widespread support from all stakeholder groups, the team believes that the continuation of the JDR program will be a positive development. 2. For the full potential of JDR to be realized, there is a need for further training for judges, especially the second-level judges.

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.

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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.

3. The creation of specialized JDR courts must be considered.

The JDR experience in the Philippines underscores the reality that successful mediation of complex disputes requires specialized skills

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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:

i. Specialized JDR courts will allow the use of financial

resources for training to be focused on a smaller group of judges, thus allowing the advanced and in-depth training needed for effective JDR for complex disputes.

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.

iii. The creation of specialized second-level JDR courts will

open a career advancement opportunity for first-level court judges who display outstanding JDR skills because they can be considered prime candidates for these specialized courts. This career opportunity will further motivate first-level judges to improve their performance. In this regard, however, the team notes the suggestions of judges that their performance be evaluated not solely in terms of the quantity of settlements they accomplish, but also in terms of the quality of outcomes. Some have noted that certain disputes may require greater investment in time and that would necessarily lessen the number of settlements

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they can attain. Evaluation that is solely based upon speed of resolution may, therefore, lower the quality of settlements that will be achieved by JDR. The team fully concurs with this observation, although it notes that establishing a system of evaluation on the basis of quality of outcomes will require further study.

In short, as the JDR program has experienced considerable success and acceptance before the first-level courts, and considering the strong stakeholder support for its expansion beyond the pilot areas, the team recommends that it continue to be fully implemented in all first-level courts nationwide. However, with regard to the second-level courts, the team recommends that specialized courts be designated for JDR, rather than require all second-level courts to perform JDR.

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.

The focus group discussions yielded a common but surprising observation; litigants, especially complainants in bouncing checks cases, preferred to avoid CAM and, instead, would rather proceed to JDR. The main reason is financial, that is, to avoid the filing of CAM fees. Indeed, from an access to justice standpoint, this is one of the weak points of CAM. But other reasons for preferring JDR over CAM were repeated in many focus group discussions, as follows: (i) the CAM program has been losing its good mediators by reason of low compensation; (ii) CAM mediators lack the authority and moral ascendancy of a judge which is helpful in facilitating settlement; (iii) many CAM mediators are not lawyers and this hinders their understanding of disputes; and (iv) non-lawyer mediators cannot command the respect of lawyers and litigants. To this, an added reason would be the relatively meager resources required to develop JDR capacity compared to that required for full CAM deployment. But with CAM and JDR in place, some lawyers and litigants complain that the processes appear redundant because litigants are more interested in JDR than in CAM. Yet, it makes no sense to sacrifice CAM, a program that has yielded substantial benefits to the judicial process and the public58, and there

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

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are definite advantages in having a two-tier ADR process that filters the intake of cases to be tried by the courts to disputes that really require trial and court judgment. A possible solution is the reversal of the order of remedies available to litigants, with JDR as the first-tier process and CAM, the second. A beneficial consequence of this suggestion would be the availability of the benefit of a mediated settlement process to litigants without having to pay CAM mediation fees first. This also immediately addresses the concerns of many about the alleged deteriorating quality of mediators and the lack of respect for non-lawyer mediators, while offering the advantage of a neutral mediator with the moral ascendancy of a judge. Consistent with the rights-based expectations of the parties, the JDR judge may take advantage of the parties’ acceptance of its use of evaluative techniques to facilitate a settlement. If JDR fails, the parties will then proceed to CAM, where accredited mediators with appropriate training will conduct a primarily interest-based mediation process.

5. The possibility of expanding the coverage of JDR should be studied.

In the focus group discussions, there were suggestions to expand the coverage of JDR to include cases not expressly mentioned in the guidelines, as well as certain categories of criminal cases. The suggestion merits some study because expansion of coverage will likely increase JDR case disposals, but attention must be devoted to determining where to draw the line, that is, in what types of cases will the public be better served by allowing submission to JDR.

6. Fairness in outcome and stakeholder satisfaction will be enhanced by the clarification of the judges’ role in JDR, to be incorporated in JDR guidelines and in training modules.

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.

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First, considering the high approvals of the present manner that judges conduct JDR, there is an existing stakeholder preference for a judge who actively guides the parties towards settlement. Despite the choice of some judges to withhold commenting on the merits of the case, a large percentage of judges actually inform the parties in JDR of their opinions about the merits of the parties’ respective positions. The survey results show that lawyers and litigants appear to be comfortable with this mindset. FGDs identify this as a reason for litigants’ preference of JDR over CAM. The ability to render a neutral evaluation is also identified in the FGDs as an advantage of JDR over the old pre-trial process. Also, the FGDs identify neutral evaluation as the best way to address frivolous claims and give a reality check to litigants. Second, not only is active guidance preferred by the stakeholders, but failure to provide such, is viewed as resulting in unfairness or unfair outcomes59. Third, judges seem to be caught in a conceptual debate between facilitative and evaluative mediation. This is seen from the disconnect between the preference for evaluative methods in practice, and their expression of adherence to facilitative mediation, expressing the view that parties should be given a free hand in determining the terms of settlement, even though the judge may personally believe that the settlement gives one party a significant advantage over the other. In practice, mediators seldom use purely facilitative or evaluative techniques, and instead use a combination of both approaches. The current Guidelines do not call for either approach. Instead, it merely identifies the role that judges may take in JDR, including the JDR judge acting as a mediator and an early neutral evaluator. There is nothing that prevents judges from combining facilitative and evaluative techniques. 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.

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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. Given the above considerations, we recommend some clarification on the judges’ role in JDR, both in the guidelines and in training modules, with emphasis on (i) the usefulness and propriety of the application of various techniques, including facilitative mediation that incorporates the use evaluative and fact-finding techniques such as evaluation and mini-trial; (ii) storytelling as a condition precedent to option generation; and (iii) issues pertaining to power imbalance identification and correction. 7. Initiatives for enhancing awareness of lawyers and litigants on JDR should be adopted.

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. 8. Litigants should be informed of the nature and purpose of JDR before conducting JDR hearings to allow them to craft settlement proposals, with the assistance of their lawyers, to bring to the JDR hearings.

Although the survey indicated that all stakeholder groups strongly believe that participants fully understand the JDR process and that the

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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 The three-year JDR experiment has clearly yielded extremely encouraging results, as seen from the disposition statistics, survey findings and the focus group discussions. While certain program modifications are in order, the basic concept of judge-facilitated settlement is one that appears to have been fully accepted by all sectors despite initial apprehensions. The success of the experiment is due mainly to the readiness of the judges themselves to take on the role of dispute facilitators, and the training, monitoring, program support and management provided by the JURIS Project and PHILJA. Whether these achievements can be sustained and reinforced as the program moves on to its next phase is the challenge that confronts all those involved.

REDISCOVERING OLDEN PATHWAYS AND VANISHING TRAILS TO JUSTICE AND PEACE:

INDIGENOUS MODES OF DISPUTE RESOLUTION

AND INDIGENOUS JUSTICE SYSTEMS

Maria Roda L Cisnero* In CARAGAN VALLEY in the Province of Compostela Valley sometime in 2004, two Mandaya residents, Pedro and Juan1 of Barangay Langgawisan went to the forest to hunt. While aiming his bukakang2at a wild boar, Pedro accidentally shot Juan who, at that moment, was after another wild boar. Instantly, Juan died of the gunshot wound to his chest. Fearing for his life and possible retaliation from Juan’s relatives, Pedro surrendered to the Poblacion police station. However, the police did not receive any complaints and they released Pedro from detention after twenty four hours. Upon his release, the police station radioed the Barangay Captain of Langgawisan to inform him of the incident. After the body of Juan was recovered, his family asked for the intervention of the Barangay Captain to settle the case. Immediately, the Brgy. Captain referred the case to the Limpong ng Mangkatadong3 for settlement. Through the Mandaya’s 4 indigenous disputes resolution mechanism, the case was settled, with the family of Pedro handing over some of their possessions, including Pedro’s hunting ground, to the family of Juan. _______________________ *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.

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Up North in Baguio, sometime in July 2006, three young male adults from Bontoc were killed in Baguio City by an individual from Belwang (Sadanga) who was accompanied by someone also from Bontoc. Tribal war was in the offing. The Belwang tribe sought the intercession of MBTELA5 to facilitate the dialogue between the parties involved. A representative of MBTELA went to Bontoc and proposed that negotiations and dialogue be conducted in Baguio City, since the incident happened there. The municipal and barangay officials of both Bontoc and Belwang met in Baguio. Negotiations took the better part of the whole day. Settlement was had at around 8 o’clock in the evening. As a result, tribal war was prevented and the case was settled without going to court. Similarly, in other parts of the country, indigenous dispute resolution in many varied forms remains to be the most appropriate and effective mechanism for settling disputes and peace-keeping. The process is called: Tongtong among the Kakanaey and Bago peoples of Bakun; Tigian among the Alangans and Hirayas of Mindoro Occidental; Mame’epet among the Tagbanuas of Coron in Palawan; Husay among the Higaonons and Talaandigs of Misamis Oriental and Bukidnon; Kukuman among the Tinananon Manobo of Arakan Valley; Iskukom among the T’bolis of Lake Sebu; Tiwayan among the Tedurays of Maguindanao; and Gukom among the Subanons of Zamboanga. 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.

There is a growing interest in indigenous dispute resolution mechanisms (IDRM) and peace-building processes. This is, in part, attributed to the continuing institutionalization of various Alternative Dispute Resolution (ADR) mechanisms in the administration of justice in the Philippines. Despite the increased curiosity and the continued efficacy of these systems and processes, there has been little in the way of legal scholarship into indigenous laws.6 Similarly, it has been observed that anthropological and sociological studies of indigenous law in the Philippines have also been extremely limited.7

ADR – from Court Annexed Mediation and Judicial Dispute Resolution down to the Barangay Justice System (BJS) – are now part

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.

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of the country’s national justice system. The psychology behind it has been dissected. The economics of litigation has worked against itself. The historical rootedness of ADR mechanisms however, has been mainly limited to how Filipinos generally (and wrongly) perceive history – that was, and that which will never be.

The fact is, these so-called innovations and alternative mechanisms are not new to the Philippines. Dispute resolution mechanisms have been in existence, to use an IP legalese jargon, since time immemorial. From another perspective, one can even argue that IDRM is the mother of all dispute resolution processes in the country.

Unfortunately, IDRM are, in most cases, not properly recognized, barely understood and hardly respected. Worse, most of the efforts concerning IDRM are focused on integration and assimilation into, if not an interface with, the formal justice system. Codification and formalization usually become the primary recommendations. Goals and Objectives With the main objective of promoting respect and recognition for traditional indigenous practices for settling disputes, the Indigenous Peoples (IP) Cluster of the Alternative Law Groups (ALG) conducted a study on IDRM. The primary goal of the project was to generate policy proposals or recommendations mainly for the judiciary to analyze the possibility of interfacing it with the current judicial system. The proposal likewise provided that if the research process arrives at a conclusion that a policy proposal for purposes of interfacing is not feasible, recommendations would still be generated to find other more workable and acceptable options.

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.

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Limitations of the Study The researchers, at the early stages of the project’s inception, realized the need to define several concepts such as: indigenous dispute resolution mechanisms, customary law, indigenous justice system and interface. Unfortunately, there appears to be no single definition of these concepts which may be considered acceptable across the boundaries of legal and sociological scholarship (Gatmaytan, 2005:47). For purposes of this research, these four terms will be understood essentially based on the definitions provided by Republic Act 8371 or the Indigenous Peoples Rights Act (IPRA)8 and RA 9054 or the Strengthened and Expanded Organic Act for the Autonomous Region in Muslim Mindanao.9

Initially, the research was focused on merely identifying the existing IDMR processes and procedures, validating the continued observance of such, and determining the kind of cases generally handled. As the study progressed, the researchers realized the naiveté of singling out parts of the process. Fact is, these organs of IDRM are intimately intertwined with its varied norms and procedures that generally include the jurisdictional or justice-related functions of the indigenous communities. The study, by trying to reacquaint itself with IDRM, showed the very essence of indigenous justice systems as playing an integral role within a specific context, for purposes of providing justice and preserving harmony in the community. Hence from hereon, IDRM and indigenous justice system (IJS) will be loosely interchanged from time to time, or referred to at the same time.

The concept of interface is used in two levels. Stage one of the project is mainly descriptive of the circumstances and instances where the separate legal systems of the IDMR in the focus areas vis-a-vis the national legal system coordinate, meet or clash. For the second stage, interface refers to looking into spaces where these independent, and often unrelated, justice systems can meet effectively, in an attempt to identify workable policy options in the interest of promoting access to justice and justice reform.

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.

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communities/Indigenous Cultural Communities from selected areas in Luzon, Visayas and Mindanao. The areas were identified based on: (1) the existence and continuous observance of indigenous conflict resolution mechanisms; and (2) the presence or, at the minimum, limited engagement of the ALG IP Cluster member organization in the area. The areas covered by the study are as follows:

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Area Ethno-linguistic Group

ALG - IP Cluster

Ayungon, Negros Occidental & Inablang, Kabangkalan City

Karul-anon Legal Assistance Center for Indigenous Filipinos (PANLIPI)

Arakan Valley, Cotobato

Tinananon-Manobo

PANLIPI

Baguio City Mixed PANLIPI Bakun, Benguet Kankanaey-Bago PANLIPI Barira, Shariff Kabunsuan Buldon, Shariff Kabunsuan

Iranun Sentro ng Alternatibong Lingap Panligal (SALIGAN) – Mindanao

Calintaan, Occidental Mindoro

Tao-buhid PANLIPI

Caragan Va. Maragusan, Compostela Valley

Mansaka Paglilingkod Batas Pangkapatiran Foundation (PBPF)

Claveria, Misamis Oriental

Higaonon Balay Alternative Legal Advocates for Development in Mindanaw (Balaod-Mindanaw), Inc.

Coron, Palawan Kalamian-Tagbanua

Environmental Legal Assistance Center

Kabankalan City (Brgy. Kamang-Kamang)

Ati (resettled community)

PANLIPI

Kabankalan City (Brgy. Kamingawan)

Bukidnon PANLIPI

Maragusan Va, Maragusan, Compostela Valley

Mansaka PBPF

Lake Sebu, South Cotobato

T’boli PANLIPI

Lake Sebu, South Cotobato

Ubo PANLIPI

Magsaysay, Occidental Mindoro

Ragatnon PANLIPI

Miarayon, Bukidnon Talaandig Balaod-Mindanaw Sablayan, Occidental Mindoro

Alangan Mangyan

PANLIPI

Siocon, Zamboanga Subanon Legal Rights and Natural Resources, Inc. – Kasama sa Kalikasan or Friends of the Earth Philippines [LRC-KsK/FOEI-Phils] – Cagayan de Oro Regional Office

Upi, Shariff Kabunsuan

Teduray-Lambangian

SALIGAN – Mindanao

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Stage two focused on the following: 1) validation of the case studies in the different areas covered through a research forum with multi-stakeholders; 2) segregated focus group discussions; and 3) interviews with the key informants from the focus areas and members of the bench and bar. A cluster level workshop-analysis was also conducted in concluding the study. 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

The Philippine Supreme Court has embarked on an ambitious six-year judicial reform program known as the "Action Program for Judicial Reform 2001-2006" (APJR).11 Working with the Justice Reform Initiatives Support Project (JURIS), the Alternative Law Groups (ALG) saw this program as an opportunity for complementation of efforts towards law reform and empowerment of the poor for greater access to justice.12 One of the strategies identified by the ALGs is the strengthening of ADR mechanisms. This component intended to give special emphasis on promoting respect and recognition for IDRM.13 While rural indigenous communities have long been resolving conflicts in accordance with their respective customs and traditions, their full use of IDRM are often hindered by the need to resolve contradictions inherent within official legal systems. For the IPs, the national legal systems are limited and limiting, hence, there was a need to examine: 1) possible areas for interface; and 2) the ability of indigenous customary law for resolving conflicts to stand alone, and

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.

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yet be recognized by the mainstream legal system as a legitimate mode of dispute resolution. Outline of the Article This article aims to provide a preview of the research findings and a glimpse of the journey that was, in uncovering old truths, validating customs and traditions and discovering pathways towards the future by revisiting the past. The study will begin with a brief history of the Philippine Legal System and the parallel struggle of the pre-conquest justice systems to survive. It will look into how the latter endured, albeit in varying degrees, through time. This discussion will also tackle the way that the highly-centralized Philippine national legal system continues to utilize and reinforce legal structures and concepts first imposed during colonial regimes. At this point, the article will scrutinize seemingly contradictory provisions of the main legal instruments that provide certain degrees of recognition of the Indigenous Conflict Resolution Mechanisms and Indigenous Law. 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.

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Colonization of the Indigenous Lifeworld After “discovering” the group of islands which would later be called the Philippines, Spain imposed the Law of Indies. The law did not only introduce the legal fiction and western concept of jura regalia14, it also reduced existing justice and legal systems of the non-hispanized indios and moros to mere customs and traditions. By doing so, customs and traditions, by law, automatically became a secondary source of law operating in their laws’ absence and technically, never in contradiction to it (contra legem). (Fajardo, 2002:35) Thus began the systematized imposition of hundreds of years of legal structures and concepts of the colonial regimes. “Spanish colonists saw little value in the centuries old social systems which have been evolving within the Philippine archipelago. The Spaniards also saw little, if any reason to recognize the native’s living law. Instead indigenous customs and traditions were suppressed if they interfered with the aspirations of soldiers, priests, entrepreneurs and government officials.”(Lynch, 1983:459) It was further observed that the colonial legal systems failed to acknowledge, appreciate and/or reinforce indigenous norms, laws and processes. The legal importation did not stop there. Neither was its implementation limited to those who were baptized or Christianized. In time, and in the process of “nation-building”, even those groups of peoples who were largely unconquered15 and had their own pre-conquest legal norms, leadership structures and dispute settlement processes, by legal fiction, were affected by the impositions made under the bell. 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.

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Western counterparts, Muslim missionaries were much more accommodating16 to indigenous legal systems. (Lynch:459) At this point, the colonial legal institutions were established in just the “civilized” parts of the archipelago, where the Christianized Indios are located. Meanwhile, those who were branded as “infiels,” “paganos” and “moros”17 managed to regulate their social interactions such as marriage, inheritance and land contracts, as well as resolve their conflicts according to their culture, customs and traditions.

While the Supreme Court in the case of Cruz vs. NCIP18, 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 Board19 and People vs. Cayat20.

In Rubi vs. Provincial Board, the High Court declared through Justice George Malcolm that:

“In resume therefore, the Legislature and the Judiciary, inferentially, and different executive officials, specifically, join the proposition that the term “non-Christian” refers, not to religious belief, but, in a way, to geographical area, and, more directly, to natives of the Philippine Islands of a low grade of civilization, usually living in tribal relationship apart from settled communities.” (emphasis supplied)

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)

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Another discriminating misrepresentation of ICC/IPs was immortalized in the case of People vs. Cayat where the “validity” of treating IPs as a distinct group or class for purposes of the equal protection clause was justified. The Court stated that such classification is unquestionably reasonable to meet the peculiar conditions existing in the non-Christian tribes then. Rubi and Cayat both asserted that there could be no true equality before the law between non-Christians and Christians because of the former’s degree of culture.

The Philippine Republic “born” in 1946 inherited the hybrid Spanish-North American system. Fernandez posits that the highly-centralized form of government that was imposed by the colonial powers is still very much in place. After independence however, this type of government has persisted partly out of institutional inertia, partly because of the successful political conditioning of the ruling elite, and partly because a centralized government is appropriate, if not indispensable, to the requirements of post-colonial development. (Fernandez, 1980:385)

Meanwhile, the colonial and neo-colonial experiences heavily impinged upon the growth and development of IDRM, indigenous justice systems and other indigenous institutions. Resilient as the peoples who are the bearers of these systems and processes, IDRM - that was reduced into “norms and custom” and practically considered in contra legem – evolved and endured. Its bearers bore labels ranging from paganos, infiels and moros, which slowly shifted to “non-christian tribes”21, and then to “national cultural minorities”. It was only recently that the term “indigenous cultural communities”22 and “indigenous peoples”23 became the norm. (Leonen, 2007:46). Even prior to the legislative and policy paradigm shifts occurring after the enactment of IPRA, a felt need of having to reorient the 21 ‘Non-Christian’ is an awkward and unsatisfactory expression. Legislative, judicial and executive

authority has held that the term ‘non-Christian’ should not be given a literal meaning or a religious signification, but that it was intended to relate to degree of civilization. This has been the uniform construction of executive officials who have been called upon to interpret and enforce the law. The term ‘non-Christian’ refers not to religious belief, but in a way to geographical area, and more directly to natives of the Philippine Islands of a low grade of civilization. See also, Com. Act No. 141 or the Public Land Act. Sec 48 (c) provides rights to “national cultural minorities”.

22 Starting from the 1987 Constitution, See Art. II, Sec. 22 23 RA 8371 formally recognized indigenous cultural communities as “indigenous peoples”. For

purposes of this research, the term indigenous peoples covers those contemplated by law; specifically , RA 8371 and RA 9054. RA 9054 explicitly includes the Bangsa Moro peoples in its definition of indigenous cultural communities.

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national legal systems and make it more reflective of indigenous juristic elements, started emanating. (Lynch:457). This is not to say that the rules and institutions adopted from foreign jurisdictions are not suitable to the Filipinos’ needs as a people; it is merely to emphasize that Philippine law is mostly of foreign origin or derivation, and has not been drawn from indigenous sources.

Therefore, the felt presence of the so-called majority–minority divide in the appreciation of national legal systems versus various forms of indigenous justice systems is not surprising. While the labels may be slowly fading out, the stigma associated with indigenous cultural norms and practices still remain. Legal Pathways and/or Roadblocks to Justice? The constitutional recognition of customary law should be construed as one of the more symbolic responses in correcting a grave historical injustice. The Constitution currently provides that “(t)he State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.”24 This provision is further affirmed where the state guarantees to protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being.25 Providing further that ”(t)he State shall recognize, respect and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions and institutions. It shall consider these rights in the formulation of national plans and policies.”26

These affirmations were followed by making room for IDRM at the Barangay Level through the BJS27 where the law mandates that customs and traditions of indigenous cultural communities shall be applied in settling disputes between members of the cultural communities.28 IPRA is predominantly viewed as the law recognizing IPs rights to ancestral lands and domains. IPRA is more than just an Ancestral Domains Law, it also clearly provides for the primacy of customary

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.

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law, as it mandates that disputes involving indigenous peoples are to be settled using customary law and practices.29

A more institutionalized recognition is provided for in the Organic Act for the Autonomous Region in Muslim Mindanao (ARMM). RA 9054 creates a system of tribal courts for the indigenous peoples in the ARMM. Said system may include a tribal appellate court, as determined by the Regional Legislative Assembly (RLA), which is also mandated to define the composition and jurisdiction of the said tribal courts. The law recognizes the power of these tribal courts to determine, settle, and decide controversies and enforce decisions involving personal and family and property rights of members of the indigenous cultural community concerned in accordance with their own tribal codes. Furthermore, the law recognizes the exclusive jurisdiction of these tribal courts over crimes committed by members of indigenous cultural communities where the imposable penalty as prescribed by the Revised Penal Code or other pertinent law does not exceed imprisonment of six (6) years or a fine not exceeding Fifty thousand pesos (P50,000.00) or both such imprisonment and fine and where the offended party or parties are also members of the indigenous cultural community concerned.30

“O heavenly spirits, may you guide the conscience and hearts of both contending parties so they will stick to the truth. And,

O unseen spirits, may you disturb the conscience of those who attempt to lie, so they will not veer away from the truth.”

- -Opening Petik The Indigenous Dispute Resolution Process 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.

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name, remains to be generally non-adversarial, non-confrontational and participatory. The process is generally initiated by a complainant or an offended party approaching an elder to report an offense and seek resolution. The elder confers with members of the council of elders and calls for a dialogue. A date or a given time is set for the actual dialogue, and the involved parties are notified. The process commonly begins with an opening ceremony, ritual or prayer. The mediating Talaandig datus32 for instance, pray to Magbabaya to ask for guidance and invite the spirits of the laas or ancestors to provide wisdom in resolving the conflict. A gukom leads the pangimunag or opening ritual for cases.33 On the other hand, the tongtong34 is opened through a prayer or petik led by an elder or one of the Papangoan. Offering a drop of tapuey, the traditional rice wine in the place, the elder chants the petik that asks the heavenly spirits to guide the conscience and the hearts of the contending parties so the truth may come out. Over the years, particularly after the introduction of Christianity in the community, this opening ritual has undergone some changes. In the past, the prayer was led by a senior member of the council of elders, who can either be a male or a female. Now, it is jointly led by a senior member of the council of elders and representatives of the various religious groups attending the tongtong.35 The petik is now carried out with an invocation of the traditional prayer by a senior elder, and a Christian prayer led by representatives of religious groups. The opening ritual or its equivalent is common to all IDRM/IJS documented. The closing ritual however, does not necessarily apply, for some processes. In the case of the Tiwayan System of Conflict Resolution,36 the ritual called Iném Kénugéw is performed only when there is a perceived need to finally settle any ill feelings remaining between the parties. After the ritual, the relationship between the two is considered restored. The same is true for the Higaonon tribe of Misamis Oriental. A singampo pasalamat ritual is performed to thank the spirits for their guidance and presence during the process of 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

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conflict resolution. The ritual is also performed to seal the agreement and bind the parties to the agreement. The closing petik is also considered a cleansing ritual; an elder chants a closing prayer that asks the spirits to restore harmonious community relations, which can only be done if contending parties remove all hard feelings in their hearts so that stability and prosperity reigns, as they resume normal lives (Arquiza ed., 2005: 45). For the Mangyans37 of Occidental Mindoro, on the other hand, the closing prayer is not only for the purpose stated above, but also a prayer of thanksgiving; praising the heavenly spirits for their guidance which ultimately helped achieve a peaceful resolution. There are also IDRM where settlement agreements are not only sealed by prayers but with ceremonials gatherings. For the Iranun38 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. The tongtong in Bakun and the tongtong facilitated by MBETELA also observe closing ceremonies for high impact cases. Note however, that there are cases and negotiations where the parties and participants are not allowed to eat until a settlement is had. The concluding ritual usually requires the slaughtering and cooking of a pig or cow, and the parties and witnesses partake of a meal together, signifying the end of the dispute or hostilities.

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.

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Nature and Venue of the IDRM/IJS As a general rule, the dispute resolution process, being participatory and communal in nature, is open to all. The aggrieved, the offender, their families, women, children and all other concerned members of the community may participate in the settlement process. For the Marikudo of Negros however, the sessions are limited to contending individuals and members of the tribal council. In Mindoro Occidental, the Alangan prefer closed-door sessions. The Tiwayan System of Conflict Resolution is generally open to all except when the case calls for a Séékémén which is a swift and confidential settlement of sensitive or delicate cases [i.e. most, if not all, involve offenses that are sexual in nature]. Only the assigned Kefedewan39 and the parties directly involved (i.e. the alleged perpetrator and the complainant/victim) are present.40 In Siocon, despite the fact that women and children are welcome to attend, the participation is usually limited to their men. There are no designated mediation centers or courts of justice for purposes of the IDR/IJS. The Subanon calls their tribal house Baloy Nog Gukom.41 Most of the focus areas however, do not have fixed venues. Usually the venue for the conflict resolution process is the house of the Datu, Tribal Chieftain or any member of the Council of Elders. In the past, the venue for tongtong is an open space where the hearing and resolution process is in full view of the main participants and the general public. However, with the advent of barangay halls42 or government structures, the tongtong is now held in these places. Peace of mind is the absence of conflict in the community,

whether physical or emotional. This is the basis for justice and development for all and not the satisfaction of

one person or a few people in the community. -Article 1, Section 7, Ukit Notion of Justice

The adherence, albeit to varying degrees, to the IDRM/IJS - despite the existence of BJS, the courts of justice and the influx of influences from other cultures - is generally attributed to the fact that these

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.

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systems are effective in dispensing justice. Justice, once served, ultimately restores peace and harmony in the community.

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.

Despite these notions, the prevailing element and institutional foundation of these IDRM/IJS is still driven by the need to strengthen community relationships and instill good values and norms. Kefiyo fedew44 or peace of mind is defined as “a state of mind and physical being of an individual which is free of any problem be it emotional or physical.”45 Thus, conflicts are always resolved through “win-win solutions”, where both parties are satisfied and have no ill feelings. Most of the IDRM documented have no appeals process. In fact, only the Tiwayan System of Conflict Resolution provides for a baruwat where a previously-settled case may be reopened before another kefedewan.46 While there is strictly no appeal in the Subanon Justice System, they have the Gukom of Seven Rivers47, the highest tribunal of the Subanon that convenes only when the matters to be settled involve disputes which are of general interest to the Subanons.

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.

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– justice is still served - for the peoples who resort to it and their communities. Nature of Crimes and the Penalty System The IDMR/IJS takes cognizance of all types of cases. By and large, there is no distinction between civil and criminal cases. Thus, offenses are appreciated not solely in the context of the offender and offended, but also within the community and, if inter-tribal, between communities.

The strong sense of community and territory is closely connected to the appreciation of the impact a conflict creates on the harmony and sense of stability and peace of the community, as a whole. Thus, disputes are generally always seen in a personal context (offender-offended) and in the context of the community. As a consequence, when an offense or crime is committed against a member of a community, it is usually treated as if it was committed against the whole community, not only against a particular individual. In the case of the Teduray-Lambangian, this is reflected in their penalty system where the amount imposed as penalty is given (in most cases) not only to the offended party but the Fénuwo (village) as well. The amount given to the Fénuwo is further divided between the Kéféduan (tribal justices) and the Ingéd (whole tribe or ancestral domain).

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

This communal perspective is also seen as the reason why conflicts are not strictly defined. There are no definitive lists that provides for specific offenses with corresponding penalties. Rather, “the offenses are evaluated based on threats to or infringements on the life,

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.

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property and dignity of the offended party or community.”49 There are emerging forms of documentation50, and semi-assimilated and highly assimilated focus areas loosely refer to the offenses using crimes enumerated in the Revised Penal Code. The Kitab Keadatan or body of customary laws of the Teduray and Lambangian peoples is an exception to the general observation. It is composed of three major works: 1) the Ukit or Constitution; 2) the Tegudon or Creed, and 3) the Dowoy or penal laws.51 The Kayang Bala covers the range of penalties set by the Tegudon. Although this serves as the primary reference regarding penalties, there are other bases that may be considered in setting the exact amount of penalty to be imposed by a Kefedewan. The sanction and/or penalty imposed are set in the Tiwayan or settlement of conflict. After which, it is the responsibility of the entire community to enforce the penalty (Arquiza, ed:2007).

Similar to the indigenous notion of crimes and offenses, there are also, generally, no fixed sanctions.52 Penalties are still mostly determined based on the weight or severity of the offense as perceived by the offended party and the community. Precedents and penalties, as listed, are generally only of persuasive value. The process described below is basically the same process observed in the focus areas covered:

“At all times, the penalties imposed are defined

based on a case-specific situation. The Limpong ng Mangkatadongs (Council of Elders) who administers the settlement and

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.

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judgment processes are only mediators or arbitrators of justice. The extent of sanctions to be imposed is articulated first by the victims and their families. The Limpong then communicates the demands of the victim to the family of the offender through a designated negotiator called “pilipiti”. In cases where the family of the offending party can not afford to comply with all the demands made, the Limpong ng Mangkatadong actually contributes to fully pay off the demand. This assumption of responsibility by the Limpong ng Mangkatadong affirms the community’s view of collective responsibility. The practice has been carried out since time immemorial to strengthen kinship and ensure cohesion among members of the tribe.”

The Subanons’ notion of retribution and penalty best describes the general notion observed and affirmed in this study. The case study in Siocon affirmed that Subanons prefer reconciliation to retribution. Harmony within the community comes first. For them, the concept of social cohesion and restorative justice are at par. As one Timuay said, for the Subanons, the principle is “Palita ang Kalinaw” (buy peace).

Most of the IDRM/IJS documented do not impose capital punishment. Six of the focus areas even revealed that they have long abolished the said form of penalty. These communities arrived at the decision to abolish the penalty on various grounds but the two main reasons are: (1) Catholic and Christian teachings; and (2) prohibition by the State.

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.

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before imposing the penalty.54 In case, for instance, of Timuay Justice and Governance:

Fetindegon Turos – Literally translated as death penalty, this is the highest form of penalty that may be imposed on a person. This is imposed when the offender may no longer be corrected through the payment of property or cash. Thus, the life of the offender shall be taken from him as payment. Although in actual practice, any one with good record in the village can stop the execution. Said person must then be ready to take custody of the offender. A ceremonial execution of the declaration, referred to as bangun, shall follow.

Another ticklish issue is the perception of some people that some of the IJS impose “…excessive fines, and cruel, degrading or inhuman punishment.”55 Examples include the imposition of bordon56, a form of penalty where the offender is lashed with a rattan cane, and panglao57, a sanction where the offender is humiliated in front of fellow villagers by undergoing an ordeal. 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.

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cluster to evaluate the same under the standards of penalties imposed under the national justice system. Suffice it to say that the penalties meted out are part of a complex process inherent and unique to the existing IJS studied. They also stem from a justice system that knows how to value life, peace and harmony.

BJS borrowed and adopted “mediation” from the indigenous conflict resolution systems of all indigenous peoples

in the country, and probably in the whole world.

- Datu Veloso Suhat58 Supreme Datu, Arakan Valley,

Kidapawan, No. Cotobato

Areas of Interface The various IDRM/IJS managed to survive despite the lack of state recognition for its validity.59 The advent of IPRA provided an impetus for the State to admit the existence of more than “one” law or legal system in the same geopolitical space.60 This phenomenon is generally referred to as legal pluralism. Accordingly, legal pluralism is created in several situations, among which are:

One is a situation of Colonialism, in which a Colonial government imposes a new regulation in a territory ruled already by previous authorities, norms and proceedings. So, some sectors of the population or some areas of the social life continue to be regulated by the old legal system. Legal pluralism also exists in the contexts of wars, revolutions, and processes of fast modernization, where the old legal system and the new coexist for a certain period. Legal pluralism may occur too where indigenous peoples or

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.”

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ethnic minorities co-exist with an ethnic majority that imposes a “national legal system”.(Fajardo:39)61

The Philippine experience falls within the purview of two identified situations. Legal pluralism, although not reflected and recognized by state law, thrived and existed. The Supreme Court itself even recognized the existence of the interface between national law and customary law in the case of Pitog vs. People.62

The coexistence of different systems of rules at the same time, in the same geopolitical space, may produce conflicts of inter-legality. At this point, the study after validating the continuous existence of IDRM/IJS looks into the varying shades and spaces of interface and the negotiated accommodations made on the ground.

The most common aspect of interface documented is when a barangay council and a Lupon are composed of the same tribal leaders holding traditional leadership posts. In conflict resolutions however, tribal leaders cum barangay council members generally prefer the use of customary law in settling disputes.63 If there is any modification in the process, it is the adoption of the documentation requirement of the BJS. The Kankanaey–Bago and Karulanon however, give contending parties the option not to have their case recorded and reported. It has likewise been reported that migrant non-IPs in the area prefer to have their conflicts settled using customary law.

Meanwhile in Mindoro, the focus areas reported that no aspect of their IDRM/IJS has been interfaced with the BJS. The Tao-Buhid has followed and adopted the documentation requirement of the BJS. For its leaders, documentation of conflict resolution proceedings will help form a repository of knowledge that will be passed on to the next generations of Mangyans. The Alangan and Gubatnon tribes have not started documenting their settled cases. They, however, expressed openness to adopting the documentation requirement since they both have an indigenous writing system.

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.

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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 seven65 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

The harmonization created by the two remaining villages is several notches higher. In 1999, Brgy. Ampusungan created an Indigenous

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.

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Council of Elders. The council filed a resolution asking it to officially recognize them as mediators and that any decision they reached using the tongtong process shall be considered as official and final. Such resolution was upheld by the municipal government (Arquiza ed.:2005)

The Joint Ulama Municipal Peace and Order Council [JUMPOC]67 harmonizes the Iranun’s IDRM/IJS, Shari’a law and the BJS or barangay justice system. Such being the case, the decisions made and the processes used are largely based on the Qur’an and hadiths/ahadith68 as sources of the Shari’a law. Customary laws and traditions are also consulted and considered. The penalties set for each of the offenses are based on customary law or Shari’a law or both. JUMPOC has three levels: barangay, district and municipal. The barangay level has original jurisdiction over the cases. This however is not exclusive; the municipal level can take cognizance of all cases brought before it. As a general rule however, the municipal level JUMPOC requires an endorsement from the barangay and district level JUMPOC.

The incorporation of the indigenous systems in the barangay and municipal structures has generally resulted in a more peaceful community. Justice has become accessible to the Iranun peoples of Barira and Buldon. Regular courts are in Parang, Maguindanao or in Cotabato City. Getting there can be difficult and time-consuming, especially for rural folk who may want to save the money for public transportation for some other more basic needs of the family, or to use their time for income-earning activities. (SALIGAN: 2005)

Arakan Valley, Barira, Buldon and Caragan Valley, the focus sites, are unheard of by many. It would be easy to attribute the continued existence of IDRM and IJS to the fact that these are rural indigenous communities with their indigenous systems, practices, and structures relatively intact. This study however, also managed to document an interfaced assembly of elders and leaders based in Baguio City.

The MBTELA was borne out of an urgent need and call to end hostilities that had all the makings of a tribal war. Sometime in the

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

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1980s, several Baguio based tribal elders from various ethno-linguistic tribes of the Cordilleras started an anti-tribal war campaign.

In 1984, a conflict between the Sumadel and Lubuagan69 tribes of Kalinga erupted. Violence and clashes, resulting in several revenge killings spilt over to Baguio City. To prevent further bloodshed and an escalation of a full-scale tribal war, where no one is spared from the revenge, MBETELA members stepped in. They invited representatives from both Sumadel and Lubuagan to a dialogue. Elders from both factions were determined to see the end of the clashes particularly in Baguio City. Most members of the tribes who were in the city were either students or workers/laborers. Utmost care was taken to prevent the escalation of a full-scale tribal war. The dialogue started at 8 o’clock in the morning, and after almost twelve heated hours, a peace pact was adopted between the Sumadel and Lubuagan. To this day, no violence has ever erupted between the two Kalinga tribes.

Since then, MBETELA slowly evolved into an assembly of skilled elders and leaders acting as a conflict resolution conduit from time to time. It was officially registered with the Securities and Exchange Commission in 2003. Due to its vast experience in assisting or facilitating disputes between and among different communities, the MBETELA has distinguished itself not only in Metro Baguio but within their Cordillera-wide jurisdiction without borders.

MBETELA has perfected the art of creative dismissals. Of the 19 focus areas, the cases handled by MBETELA are the ones70 that frequently brush with the other pillars of the national justice system such that:

In criminal cases wherein the police are called to investigate and cases are being readied to be filed, dialogues are usually called before a case is filed with the Prosecutor’s Office or the Court, as the case may be. In instances where a case has already been filed, dialogues are still called and settlement between the parties could still be had. In these cases, the offended party or his family

69 Both Sumadel and Lubuagan are ilis (municipalities) of the province of Kalinga. 70 The Iranuns and Manobos interviewed for the study likewise mentioned instances of filing Affidavits

of Desistance.

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will execute an Affidavit of Desistance so that the case will no longer be filed by the Prosecutor or it will be used as a basis for a Motion to Dismiss to facilitate the dismissal of the case. These instances are called “creative dismissals”. It was noted that the filing of cases before entering into dialogue is sometimes used as a bargaining tool to get a better settlement. There are likewise instances when even the Courts have given the parties time to settle the case before proceeding. In these dismissals, however, the reason or basis given is that the offended party is no longer interested in pursuing the case and not because the case was settled through the customary justice system.71

Incongruent Justice Systems The study has documented various illustrations of spaces and loopholes where the IJS and National Legal System meet,72 match73 and clash.74 Cases, when scrutinized using the framework, requirements and limitations mandated by law, will not a stand in court.

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.

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The recognition of customary laws accorded by the BJS75 can be confusing at best. So, while the law recognizes the customs and traditions of indigenous cultural communities by allowing its application in settling disputes, the same provision limits its application only between members of the cultural communities. The limitations imposed by the BJS cover the following: (1) territorial limitation; (2) limitations on the authority to impose criminal sanctions and; (3) limitations on the cognizability of serious offenses (Humiding:1998)

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 provisions76 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.

The legal creation of tribal courts in ARMM through the Regional Legislative Assembly has yet to be realized. But, as prescribed by the Organic Act, the jurisdiction of the tribal courts is limited to:

(1) Settling and deciding controversies and enforcing decisions involving personal and family and property

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.

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rights of members of the indigenous cultural community concerned, in accordance with the tribal codes of these communities; and (2) Exercising exclusive jurisdiction over crimes committed by members of indigenous cultural communities. These include crimes whose imposable penalty does not exceed imprisonment of six years or a fine not exceeding P50,000.00 or both, and where the offended party or parties are also members of the indigenous cultural community concerned.

Although wider in scope than the BJS, the degree of recognition provided for in IPRA and the Organic Act are limited in terms of territory, authority to impose fines and criminal sanctions and cognizability of serious offenses. This is not surprising. After all, the IPRA and the ARMM Organic Act are formulations that attempt to harmonize the IJS and NJS. By recognizing customary and other indigenous institutions, these laws in effect attempted to define the preferred mode of interface by the state. This study shows however, that there is a wide gap between the spaces of interface accommodated on the ground and the state prescribed interface. Hence, an observation in 1983 (Lynch:458) remains true until today; “violations of prevailing legal norms, indigenous and national, are often resolved outside the NJS.” Although the various modes of interfaces documented confirm the observation that “conflicts between this dominant system and local cultures are always managed at local levels” (Gatmaytan ed: 37), the perceived status quo is so fragile; such that as one area of jurisdiction expands, the other one constricts until it runs the risk of tipping towards the vanishing point.78

In a research forum conducted in Davao City for the study, Bro. Karl Gaspar79 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).

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Jürgen Habermas80 makes fairly clear what the lifeworld is, in traditional societies and how it is changed—how it is rationalized—during the course of modernization and capitalist development.81 Following Gaspar’s analogy, IDRM/IJS is deemed a component of the indigenous lifeworld. The system component is comprised of the nation-state as represented by the national legal system. Accordingly, IDRM are the very essence and vehicle of indigenous justice systems, playing an integral role within a specific context for purposes of providing justice and preserving harmony in the community. As such, it is still a very integral component of the indigenous lifeworld. The system however, with its bureaucracies and institutions, is operating in a manner that is, frequently, clearly contradictory to the values and beliefs held by the IPs within the lifeworld. 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

The analysis at this point, prior to laying down recommendations and reflections, and taking off from the points discussed at the Research Forum, is to engage in communicative action. This action must enable actors in society to reach a common understanding and to coordinate actions by reasoned argument, consensus and cooperation, rather than strategic action strictly in pursuit of their own goals. Communicative action provides a theoretical basis for a kind of

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).

82Jürgen 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).

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planning that emphasizes: 1) ensuring widespread public participation; 2) sharing of information with the public; 3) reaching consensus through public dialogue rather than exercise of power; 4) avoiding privileging of experts and bureaucrats; and 5) replacing the model of the technical expert with one of the reflective planner.

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 At this juncture the study carefully moves towards some insights, reflections and recommendations, with a caveat that “it is not possible, on a national scale, to generalize the content of a specific policy/analysis corresponding to unique communities of specific ethno-linguistic groups. It is only within specific communities that it is possible to understand their existing legal systems and also the processes through which these systems change”. (Gatmaytan ed.: 60)

Despite this, there is certainly a need for the recognition of the IDRM/IJS that goes beyond merely acknowledging it. There is a concrete need to recognize and respect its special jurisdiction in terms of: 1) cognizable offenses; and 2) affirming the primary jurisdiction of IDRM/IJS. The Point of Recognition and then some… The accommodations and interface illustrated above are as varied as the cases settled before IDRM/IJS. The exercise in jurisdiction84 of all types of cases of all IDRM/IJS documented academically and on

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)

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the ground, is a great source of tension. In 1980, in a study85 towards a definition of a national policy on the recognition of what was still then referred to as Ethnic law, the author classified the cases that may and may not be handled, into sectors: 1) preferred sector,86 2) acceptable sector,87 3) neutral sector88 and 4) unacceptable sector.89 The author did not provide examples, but for an article that was, in a way, deemed remarkable in its time90 - it must have created an impact. At the very least, it must have captured the appreciation of the legal community and policy makers on Ethnic law, now more commonly referred to as customary law. Thus, the provision on certain limitations as reflected in the recognition provided by law. The assumption then, which could still be the apprehension now, is that the IDRM/IJS should not exercise jurisdiction over certain cases or conflicts that can cause minimal and/or substantial harm to national interest. At the risk of overly generalizing but without romanticizing IJS, “[i]nstitutions and legal systems rooted in pre-conquest era must not be summarily dismissed as primitive, inutile and/or irrelevant.” This study witnessed how various IDRM/IJS slowly adjusted itself to the changing times and needs, to be more effective, and in the interest of restoring peace and harmony in their respective communities. The thought of “settling” a murder case could be unthinkable and even repulsive for justice and human rights advocates, but the IDRM/IJS, as documented by this research, do not exist in a vacuum. Neither do they thrive within the criminal justice and penal processes

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.

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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:

Speedy – every case is usually resolved within 24 hours, unlike the BJS and the courts, which require years to resolve a case; Inexpensive – does not entail cost for travel, filing the complaint, lawyers and others. Impartial – it is mediated by tribal elders who are highly respected by community members for their knowledge and wisdom on customary laws, and for their sound judgment; it is rooted in their culture, thus, reflecting their system of beliefs and values.

Harmonizing – what is restored is not only the good relations between the two parties and their families, but also the good relations within the community. This, for them, is true justice which cannot be achieved by the adversarial nature of the mainstream legal system.

Translated to justice reform jargon, IDRM/IJS are effective vehicles not only for promoting access to justice but, more importantly, for ensuring that justice is served for the poor and marginalized. And in the interest of promoting ADR, this is also a venue that can provide insights on conflict resolution. In the same way, that skills-wise, the elders can also learn from the trained and accredited mediators. Pushing for more meaningful recognition in this case, the special jurisdiction does not amount to creating and carving out new jurisdictions. It is merely recognizing an effective justice system that has been there since time immemorial and is duly respected by the members of the indigenous peoples’ communities. As such, the challenge lies in realizing, respecting and recognizing indigenous

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institutions91 and justice systems that existed pre-conquest, and are struggling to stay - for some systems - while others are at risk of fading away. This article will not attempt to provide definitive formulations towards recognizing special jurisdiction, but let it be the starting point of further discussions as well as multi-party and cultural exploration on the issue. The recognition of special jurisdiction may be anchored not only on the primacy of customary law, but on the constitutional provision stating that: [t]he State shall recognize, respect, and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions.92 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 BITO93:

“[T]he tongtong should officially be declared as the first step in conflict resolutions. It should not be offered as an option but a mandatory first-step in all conflict resolutions. It must cover all cases, from petty to serious offenses including rape and murder.”94

This sentiment is also shared by the majority of focus areas covered.95 The internal discussions of the research team and the consultations conducted with specialists from various fields, despite some hesitations, ultimately agreed to reiterate this particular call gathered from various community-based focus group discussions.

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.

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accommodations in practice, a circular recognizing, protecting and promoting the primary jurisdiction of IDRM/IJS will certainly provide the much needed breathing space for the IJS’ continued existence.

However, the two main recommendations beg for more thorough discussions, heated debates and necessary refinements. For the moment, the researchers hope that the articulations in this study are sufficient to indicate and emphasize the need for a more significant form of recognition. 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/050301/ RYF-legalPluralism-BeyondLaw27-5.pdf.

Fajardo, Raquel Y., Kong Rady, Phan, Sin

2005 Pathways to Justice, Access to Justice with a focus on Poor, Women and

Indigenous Peoples, UNDP Cambodia downloaded from: http://www.alertanet.org (March 28, 2008)

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.

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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. 2000 “Change and the Divided Community: Issues and Problems in the Documentation of Customary Law,” Philippine Natural Resources Law Journal 10:1, pp. 45-74.

Gatmaytan, Augusto B. ed.,

2007 Negotiating Autonomy Case Studie on Philippine Indigenous Peoples’ Land

Rights, International Working Group on Indigenous Affairs and Legal Rights and Natural Resources Center, Inc. – Kasama sa Kalikasan/Friends of the Earth – Philippines (LRC-KsK/FOE-Phils): Quezon City.

Habermas, Jürgen

1987a The Theory of Communicative Action,Volume 2, System and Lifeworld: A Critique of Functionalist Reason. Boston, MA: Beacon Press.

1983 “The Philippine Indigenous Law Collection: An Introduction and Preliminary Bibliography,” Philippine Law Journal 58:1, pp. 457-471. 1988 “Invisible Peoples and A Hidden Agenda: The Origins of

Contemporary Philippine Land Laws (1900-1913),” Philippine Law Journal 63, pp. 249- 320.

Jajure, Raissa H. and Torrefranca, Rosalinda Charisma C.

2004 Localizing the Justice System in 6 Peace Zone Areas in the ARMM. Sentro ng Alternatibong Lingap Panligal (SALIGAN) – Mindanaw: Davao City.

Lynch, Owen J. Roy, Devasish Raja

2005, Traditional Customary Laws and Indigneous Peoples in Asia, Minority Rights Group: United Kingdom

2004, “Challenges for Judicial Pluralism and Customary Laws of Indigenous Peoples: The Case of the Chittagong Hill Tracts in Bangladesh,” Arizona Law Journal of International and Comparative Law 21:1 pp. 113-182

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Santos, Boaventura de Sousa

1995 “Toward a New Legal Common Sense.” London: Butterworths.

Sevilla, Ester O. and Lacson, Danilo C.

2007 “Timuay at Datu Indigenous Self-Governance in the Teduray and Magindanaon Societies,” The Road to Empowerment Strengthening the Indigenous Peoples Rights Act, Volume 1: New Ways, Old Challenges pp. 42-62. Manila International Labour Office , 2007.

Tate, Neal, & Torbjörn, Vallinder, eds.

1995 The Global Expansion of Judicial Power. New York: New York Univ. Press.

Other Materials Primer on JURIS http://www.alternativelawgroups.org/resources.asp?sec=det&id=170 ALG Framework for Justice Reform http://www.alternativelawgroups.org/resources.asp?sec=det&id=169 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).

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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. AO No. 1, Rules And Regulations Implementing Republic Act No. 8371, Otherwise Known As “The Indigenous Peoples’ Rights Act Of 1997.” Muslim Mindanao Autonomy Act. No. 25 Supreme Court Decisons Isabani Cruz and Cesar Europa v. Secretary of Environment and Natural Resourcws, Secretary of Budget and Management, and the Chair and Commissioners of the National Commission on Indigenous Peoples, G.R. No. 135385, 347 SCRA 128, 6 December 2000. Rubi v Provincial Board, G.R. No. 14078, 39 Phil. 660. People v Cayat, 68 Phil 12. Pitog v People, G.R. # 76593, 11 October 1990.

TRAVERSING BOUNDARIES AND THE NO-MAN’S LAND: on mediation, gender, rights and justice1

The paper aims to provide readers with a general sense of the gender/social context aspect in court annexed mediation including on-the ground realities drawn from JURIS studies. The ideas and reflections that are shared in this paper are preliminary and tentative. They are intended only to spur more discussion and thinking among those who have a stake in CAM, especially in its potential to bring justice closer to groups and individuals who are more disadvantaged, are in the margins, or are “invisible” in society. 1. The CAM design, foundational principles, and practice: the leitmotif Court-Annexed Mediation or CAM is an enhanced pre-trial procedure that involves settling mediatable cases filed in court with a Supreme Court-accredited mediator assisting the parties to consider options and to reach an acceptable compromise. Judicial Dispute Resolution (JDR) has become part of CAM as an innovation under JURIS. The case that is not settled in the first stage is referred to the JDR judge who, as conciliator, mediator, and neutral evaluator, assists parties to reach acceptable options to resolve their dispute. Compromise agreements forged by parties are submitted to the court for approval and constitute the judgment on the case. Cases that are not settled in JDR are referred to another judge for pre-trial proper and trial. Parties retain the option at any time to revert to JDR Referral to CAM is mandatory. Disputants who refuse to appear in CAM proceedings or other parties who interfere in them could be imposed sanctions. Reaching a mutually acceptable agreement for parties to the dispute is crucial to achievement of the objectives under CAM or JDR. A case settled in CAM means one less case that goes to trial and one case off the court docket. Justice is also achieved as disputants, based on their self or guided generation of options, decide what is ‘justice” in their particular situation, and agree on the resolution of conflict. Communitarian interests of ‘restoring relationships” are also likely to be served because the open and informal setting and the non-

1 A paper prepared by Atty. Eleanor C. Conda, National Judicial Institute/JURIS Gender Equality Adviser. 21 June 2008.

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adversarial nature of the CAM process encourages communication between the disputants, that could lead to understanding, and healing of the rift between them. An adversarial, win-or-lose, litigation or court adjudication mode hardly provides the environment for this kind of relationship-mending. CAM has the following elements and principles that are drawn from the design and practice:

(a) an impartial, neutral mediator or JDR judge whose role is to facilitate the process of communication and negotiation between disputants, help the parties generate options, and assist them to find a common ground from which they agree on the resolution of their conflict;

(b) an open, informal, and physical setting that fosters the communication and negotiation between parties who are assumed to have relatively equal bargaining positions, and are willing to find a solution to their conflict based on interests and values, and not on their positions.

(c) mediator’s and JDR judge’s orientation on social context and gender equality considerations in CAM, skills of and techniques available to the mediator/JDR judge in communication, conflict management, managing the CAM process, conducting a gender and socially-responsive CAM process, and equalizing possible “power imbalance” between parties based on gender and other grounds.

. This background on CAM will be the leitmotif for succeeding sections. While the discussion that follows is preliminary, it hopefully jumpstarts a sustained examination of CAM to ensure that it enhances promotion of access to justice by the poor and other disadvantaged groups including women. Further, consolidation in this paper of pertinent data from JURIS studies on CAM conducted from September 2007 through June 2008 is consciously made in response to “absence of empirical data on which to base gender awareness training of the judiciary,” identified as one of the gender-related issues in the GAD Mainstreaming Plan for the Judiciary.

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2. “Doing Gender” in CAM – a matter of justice; a matter of human rights Attention to gender equality concerns in the CAM program is seen as part of the judiciary-wide GAD mainstreaming program, whose implementation is steered by the Committee on Gender Responsiveness in the Judiciary. Put in place in 2004, the Plan envisions a “judicial system that is sensitive and responsive to gender equality and empowerment x x x thereby providing effective, efficient and accessible justice to all,.” The mission of the Plan is: “(t)o enhance speedy and fair administration of justice to all, regardless of age, gender, class, ethnicity, or religious or political beliefs through an effective and efficient judicial system that works with dignity, integrity, and accountability.”(emphasis supplied) 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 Justice2 component. This component aims to:

“to pursue and promote the following: physical access to the courts as well as speedy and fair adjudication of cases for all; protection of the poor from abuse by those who claim to influence judicial decisions; and improvement of the affordability of judicial services to the poor.”

The Constitution, specific domestic laws, and international human rights treaties to which the Philippines is party provide bases for pursuing gender equality and access to justice, and can be the legal normative framework for implementing the Judiciary’s GAD mainstreaming program, including that for CAM. 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.)

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found in other parts such as the Declaration of Principles and State Policies and the article on Social Justice and Human Rights. Significantly, the Constitution recognizes the important role of women in nation-building and ensures equality before the law of women and men (Article II, sec.14), in addition to the equal protection clause provided under the Bill of Rights. The Women in Nation-Building Act (Republic Act 7192) reiterates this provision in its Declaration of Policy, emphasizing that the State “shall provide women rights and opportunities equal to that of men.” Equal rights guarantees are provided also in specific laws like inter alia the Indigenous People Rights Act (Republic Act 8371) and the Family Code (EO 209, 1987). Also applicable are international human rights treaties that the Philippines has ratified3. These include the following: International Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR); the UN Convention on the Elimination of All Forms of Racial Discrimination (CERD); and, the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Legal obligations arising from state ratification of and the normative content of rights defined in these and similar human rights documents, apply to all state organs including the judiciary.4

A human rights approach broadens the agenda of CAM gender integration, namely, to ensure respect, protection, and promotion of the human rights of litigants/disputants in the CAM design and process,5 including their rights to non-discrimination and to substantive (de facto) equality in these rights.

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.

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Guarantees of human rights are contained in the UN Charter and the Universal Declaration of Human Rights, and also in other UN core human rights treaties and other documents.6 In addition, the ICCPR and the ICESCR as examples have express provisions on equality between women and men.7 The CEDAW provides the international legal normative framework on sex equality and sex-based non-discrimination, while CERD, on ‘race” based non-discrimination and equality among ‘races’.

Consideration in CAM of gender equality concerns is thus a strategy to advance human rights. The aim of this strategy may be two-fold: to ensure that human rights of parties to a dispute are respected and recognized, protected, and promoted; and that these rights are not impaired or denied on the ground of sex/gender, by the introduction of CAM and by litigants’ going through the CAM process.

A basis for adding “social context “ to this proposition is discernible from, among others the integration of this theme into mediation/JDR orientations. This session in the Integrated Basic Mediation Course has for its objectives, “(a) illustrate how an understanding of the Philippine cultural value system can be used to facilitate negotiation/mediation; (b) discuss socio-cultural factors in negotiation/mediation, i.e., class, gender, education, social status, age, religion, and values; and (c) explain cultural considerations in handling emotions during the negotiation/ mediation processes.” Power imbalance discussions in these orientations take the premise that gender or other status or condition of disputants affect effective

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.” 6See 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.

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communication and negotiation in CAM. It is also consistent with the Philippine Judicial Academy’s integration of social context issues in its judicial education program. Bearing this in mind, it may be argued that CAM as designed implicitly adopts a contextual approach. The proposition earlier made thus can be expanded as follows to encompass other context issues:

Consideration in CAM of gender and other social context concerns can be viewed as a strategy to advance human rights. The aim of the strategy may be two-fold: to ensure that human rights of parties to a dispute, without any distinction, are respected and recognized, protected, and promoted; and that these rights are not discriminated against on any ground with the introduction of CAM and the litigants’ going through the CAM process.

This general proposition obviously needs to be developed beyond its exploration in this paper. It can be defended as a means for the judiciary to help meet obligations of the Philippines under international human rights law. But on a more practical plane, its added value to CAM implementation, and to disputants’ access to justice and their human rights promotion becomes clearer when details of the framework are defined. Part of the work ahead is to define possible programmatic and procedural implications from the adoption of this human rights perspective in the social context aspect of CAM. 3. Gender/Social Context-related Considerations in CAM: Some Definitional/Perspective Issues Core concepts in gender mainstreaming are revisited in this section in light of emerging medical findings and feminist theories. The rough contours of an approach that could be used are presented in the same spirit as the earlier exploration of expansive perspectives and frameworks for the social context/gender equality aspect of CAM was made. Since the terms of relevance to the discussion could be defined in different ways, the definitions of the National Commission on the Role of Filipino Women (NCRFW) are the ones adopted here. The NCRFW is the Philippines’ coordinating body on policies affecting gender equality. One of its functions is to “(i)nstitute the gender responsiveness of national development plans and coordinate the preparation, assessment and updating of the National Plan for Women, ensure its implementation and monitor the performance of government agencies in the implementation of the Plan at all levels.”

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In the NCRFW website,8 gender mainstreaming or Gender and Development (GAD) mainstreaming is explained as:

the main strategy for ensuring that the government pursues gender equality in all aspects of the development process to achieve the vision of a gender-responsive society where women and men equally contribute to and benefit from development. It is a set of processes and strategies aimed at recognizing and addressing gender issues in legislation, policies, programs and projects and institutional mechanisms of the government on a sustained basis. It is essentially institutionalizing gender concerns in the mainstream development processes and agenda and not just in the peripheral programs and projects of the government.(emphasis supplied.)

“Sex” is “the natural distinguishing variable based on biological characteristics of being a woman or a man. It refers to physical attributes pertaining to a person's body contours, features, genitals, hormones, genes, chromosomes and reproductive organs.” “Gender”, in contrast, refers to

roles, attitudes and values assigned by culture and society to women and men. These roles, attitudes and values define the behaviors of women and men and the relationship between them. They are created and maintained by social institutions such as families, governments, communities, schools,

8 http://www.ncrfw.gov.ph/inside_pages/gender_mainstreaming/gender_101.htmlGender and Sex

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churches and media. Because of gender, certain roles,traits and characteristics are assigned or ascribed distinctly and strictly to women or to men.

NCRFW adds that,

(t)he social relations of gender seeks to explain the unevenness in male/female relations - noted worldwide -- in terms of sex roles in power sharing, decision making, the division of labor, and return to labor both within the household and in society, among others. It focuses on the attributes acquired in the process of socialization: our self and group definitions, our sense of appropriate roles, values and behaviors, and, above all, expected and acceptable interactions in relationships between women and men

Medical findings, advocacy on sexual minority rights, and feminist theories on sex and gender have shaken the traditional understanding of these concepts. As a consequence, distinctions between the concepts of “sex” and “gender” are blurred. The male-female binarized conception of “sex,’ is being challenged. There are also calls to stretch the woman-man bipolar spectrum of ‘gender’ to a broader continuum of gender. These are issues that challenge the traditional theoretical/conceptual base of and have yet to be addressed in gender/GAD mainstreaming programs. A human rights perspective in the social context aspect of CAM appears to provide a conceptual opening in which diversity issues including those related to the sex/gender discourse can be incorporated. Although possibly difficult and likely to meet resistance, these expansive efforts have to be initiated. Not do so is to ignore the exclusion and invisibility of some groups in society, and the denial and impairment of the human rights of those who are outside of the recognized categories, whether or not of their own choosing. These include those who are ‘inter-sexed’ or those who have physiological/biological male and female attributes; lesbians, gays, and others, who are not or who may not identify as ‘men’ or as

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‘women,” and who identify as genders in a continuum where the woman-man categories lie on the two extreme ends.9 One approach that examination of gender/contextual issues can adopt is to focus on diversity, instead of on gender, sex or other identities. This veers away from the traditional circumscription of the sex/gender division and the bipolar categorizations of male-female, and be more inclusive of ‘invisible’ groups. Diversity for the purpose can refer to (a) differences among individuals on grounds including sexual preferences and orientations and sex and gender identities, ethnic origin, class, religion, and so on; (b) assumptions and stereotypes attached to a collectivity defined by these or other grounds; and, (c) relative value or merit attached to attributes, characteristics, interpretations or views identified with a collectivity. Collectivities can be fisherwomen and fishermen, politically elite women, urban poor women, rural poor women, lesbians, and so on. “Diversity analysis” recognizes that there can be many bases or grounds for the formation of collectivities. It involves examination of (a) how and why certain aspects of diversity hamper or facilitate comparative recognition of collectivities and the comparative distribution among them of economic (and political) resources; (b) how those aspects associated with one group or collectivity are privileged relative to those of another or others; and what the impact is of this privileging on the collectivities involved; (c) how anything ‘coded’ as or identified with a marginalized or ostracized collectivity is devalued or disparaged, and the impact of this on especially on the collectivity and members thereof; and (e) how this privileging or devaluing find legal and structural translations in society. By recognizing collectivities on diverse bases helps to avoid being entrapped in narrow categorizations like women and men; male-female, heterosexual vs. homosexual, Christian-Muslim, and so on. It also helps affirm invisible and silent groups in society. 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/>

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Below is a tentative diversity analysis checklist to illustrate the scope of issues or factors that can be examined through this analysis. Adapting the diversity concept and the foregoing analysis onto the examination of gender/contextual considerations in CAM leads to asking questions like the following: (a) Do the design, principles, or elements of CAM consider the following • differences among individuals on grounds including sexual

preferences and orientations and sex and gender identities, ethnic origin, class, and so on;

• assumptions and stereotypes attached to a collectivity defined by these or other grounds; and,

• relative value or merit attached to attributes, characteristics, interpretations or views identified with a particular collectivity.

(b) What are consequences or effects if any, of the exclusion or non-consideration of any of these aspects on (i) the achievement especially of the access to justice objective of CAM; (ii) the concerned individuals or their collectivities, including their chances at a fair resolution of their disputes through CAM; (iii) other interests, e.g. peace and democracy? (c) Are any of these aspects associated with a collectivity privileged in the CAM design and practice? What are consequences or effects if any, of this privileging -- such as in accessing the CAM process, self determination and agency in negotiation, capabilities in communication and negotiation, chances at a fair and just resolution process -- on (i) the achievement of the access to justice objective of CAM; (ii) on the concerned individuals or their collectivities, including their chances at a fair resolution of their disputes through CAM; (iii) other interests, e.g. attainment of peace and democracy, etc.? (d) What are mediators’/JDR judges’ attitudes, views, or conduct in respect of aspects of diversity associated with disputants who belong to particular collectivity or collectivities? Are these attitudes, views, or conduct affirming of the rights and dignity of these individuals? Are there CAM policies and guidelines to safeguard against potential adverse effect on disputants, and their aspects to justice and human rights?

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(e) Are certain aspects of diversity that is ‘coded’ as that of or identified with a marginalized or ostracized collectivity or group devalued in CAM design and practice? What is the impact of this devaluing or disparagement on (i) the achievement especially of the access to justice objective of CAM; (ii) the concerned individuals or their collectivities,’ including their chances at a fair resolution of their disputes through CAM; and, (iii) other interests, e.g. attainment of peace and democracy, etc.? (f) What strategies or tactics to resist their domination or invisibility and fight for their human rights and interests do disputants from marginalized communities employ in the course of CAM process? How do mediators/JDR judges view these strategies? Are they supportive of them? (g) What measures can be integrated into the CAM program including temporary special measures (such as those required under CERD and CEDAW) to help promote the interests and rights of marginalized collectivities? (h) Is there a process of monitoring and evaluation to ensure the appropriateness and effectiveness of these measures? Is there a system that enables continuous feedback into policy formulation and program planning and implementation? (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?

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4. Gender and Social Context Considerations in CAM: What the Studies Say10

This section culls from, consolidates, and examines pertinent findings of JURIS research and narrative data collected for JURIS publications. It aims to add to the still limited understanding of concerns related to gender and other contexts, based on CAM implementation and practice in the 5 JURIS pilot areas. Ideas on adjustments or innovations that can be introduced based on the examination are certainly preliminary, and require development and a more comprehensive data base. a) The profile of disputants surveyed supports a view that CAM promotes access to justice by women especially the poor, workers, or informal settlers.

The ADR effectiveness study describes disputants’ profile as follows: 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.

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more accessible to the marginalized sectors, e.g. women, workers, and informal settlers.” These data raise questions with gender/contextual implications: Since referral to CAM is mandatory, does the slightly greater number of female over male litigants/disputants who went through CAM, most of whom are likely defendants or respondents, reflect the same relative ratio upon the filing of cases? Are there gender-based factors to which this slightly lopsided ratio can be attributed? 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). (2.) Cases covered by the Lupong Tagapamayapa under the Katarungang Pambarangay Law (P.D. No. 508, as amended by R.A. No. 7160). (3.) Civil aspect of Batas Pambansa (B.P.) Blg. 22. (4.) The civil aspect of quasi-offenses under Title 14 of the Revised Penal Code. (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). While this aspect of the CAM design applies to all individuals or groups, certain factors may render certain groups more vulnerable to

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being adversely affected by the enforcement of the policy on cases subject of court annexed mediation. These factors can be status and roles, biases and stereotypes, and disadvantages and inequality, based on different grounds including gender. (1) BP22/Estafa cases In the Guillen study, BP 22/estafa cases comprises the largest number of the cases (26%) involving survey respondents, followed by unlawful detainer (24%) cases. Of the BP 22/estafa cases, women account for 57% of litigants surveyed. 88% are married with monthly household income of 12,900-18,000 (24%) followed by 18,800-40,900 (19%) and 9,800-12,900 (15%). These 3 income groups alone make up 57% of the litigants’ income surveyed, not to mention that majority (56%) are also small/ micro entrepreneurs. 80% reached college and are homeowners (85%) residing in urban areas (97%).(Guillen, at 16) Informal feedback from a colleague in the Alternative Law Groups, Inc. whose members operate outside of Metro Manila, observed the same pattern. Many women defendants in these cases are teachers11. . Available narrative data on BP 22/Estafa cases involve women defendants who were poor and live in a rural area, and one who was a government employee. • In one case,12 seventy-three 73 counts of estafa cases were filed

by a lending company against two women who recruited 73 individuals who acted as the recruiters’ co-borrowers. These co-borrowers were housewives, and their husbands, children, or “elderly,” who were residents of a village near a mountain. Narrated the mediator:

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).

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The rest of the 73 cases became back-to-court cases and would have to go through JDR. • The female defendant in the second case13 was charged under BP

22. She acted as a broker of the sale of land and was entrusted by the buyer with money for partial payment of the land purchased. Defendant paid to the seller only part of the amount because she spent the rest for the hospitalization of her mother. The check she issued as partial payment to the buyer of the land turned out to not have sufficient funds.

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. (2) Support Cases Custody, guardianship, support, separation of property, and settlement of estates are among the mediatable family law matters under the existing CAM design. Under Rep Act No. 8369, designated family courts from among second-level courts have jurisdiction over these cases. A comparative case study on Family Disputes (Womenlead 2008) on three women who filed claims for support against their husbands showed how the women benefited from the mediation process. For one of the three complainants, “(j)ust the thought that mediation may help in making her husband change his ways was enough motivation for her to follow through.” Unifying themes in these women’s experience in their mediation cases drawn in the Womenlead study illustrate how CAM proceedings can help women disputants draw on their reserves of strength and help affirm their standing in a judicial proceeding. 13 Case Study on “Deal or No Deal,” (Guillen, et. al., 2007)

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Display of strength. The three women displayed their inner strength during the proceedings. Mona explained that there was no reason for her to be scared. She was tense at times but overcame her nervousness by relaxing herself and answering questions directly. Flor’s motivation – that of seeing her husband change his ways – pushed her to go on. For her part, Marie believed she was right in filing a case against her husband. The resolve of these three women was clearly revealed during the proceedings.

Mediation as an Important Judicial Engagement. The three women commented that mediation was an important judicial engagement because it really helped them in pursuing their cases. According to Marie, mediation benefited her in terms of money, time, and effort saved. Flor credited mediation for saving her family and making it whole again. Information gathered including from interviews for the JURIS Resource Guide on Gender for Mediators and JDR Judges presents a different picture, showing that women can encounter problems in pursuing their family-law based claims through mediation.

Women, especially in family court cases such as spousal or child support or custody, are often observed to have lesser bargaining power as they have less emotional and economic ability to withstand the transactional costs of the mediation, resulting to acquiescing to an agreement that may not be completely agreeable and acceptable to them. Oftentimes, a woman involved in such cases do not have the resources to engage in long, drawn-out negotiations and litigation and may be tempted to settle earlier in the process. Or worse yet, she may agree on a compromise that is close to impossible to enforce, or an agreement that puts the woman in a situation of having to incur the greater burden of enforcing it. Stories from interviews would include a man who, after agreeing to support his wife and child, fails to do so, while the court finds itself helpless in enforcing the agreement due to the foreign employment of the husband information he withheld during mediation). Or a man who, after reluctantly agreeing to support wife and child, only terminates willfully his employment just to spite his wife and assert that he is still in control. Or a compromise agreement that would make the wife run after and practically “beg” for the support for her and her children from her husband. Persistent patriarchal attitudes and deeply rooted stereotypes regarding the roles and responsibilities of women and men in the

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family and society14 may affect the dynamics of spouses in mediation proceedings that will likely disadvantage women. Women who are in weaker bargaining positions or are disempowered may not be able to assert their views during negotiation. Mediators/JDR judges have a critical role in balancing asymmetrical power positions of parties in family law cases. Experiences in other countries warn of potential risks of mediation proceedings that could erode women’s equality in rights. Although they have different contexts, those experiences can inform implementation of the family law mediation program in the Philippines while it is yet in its nascent stage. Literature on mediation15 particularly raises concern about the privatization of family law. In the Philippines where substantial gains have been made in formalizing equality rights for women within the family, this privatization may lead to the chipping away of these legal rights through negotiated settlements that fall significantly below equal standards set by law, such as on support and property settlements. The narrative data presented above illustrates how patriarchal attitudes and gender stereotypes within families still persist despite gains in women’s formal equality rights in private and public realms. First, it is the women, not the men who claim for support, implying that women are likely the ones who assume the greater burden of supporting their families including children. Second, although it is the legal obligation of men to support their families, compliance with this obligation can turn into a power play at the expense of women. Non-disclosure of financial resources by parties, or non-enforcement of compromise agreement are among other problems linked to privatizing family law.

Privatizing family law matters like support, custody, guardianship or property settlement leaves no safeguards against women from 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; .

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negotiating below their legal entitlements. This possibility is greater when women are not aware of their legal rights, and may be compounded by the promotion of interest and value-based resolution over parties’ rights in negotiation. Relegating family law cases to the realm of the “private,” outside of public scrutiny and without documentation can reinforce social inequities. Resolution of family law-related conflict through mediation can render parties’ agreement as ‘second-hand justice,” or the mediation as a lesser forum. Narrative data shows preference of disputants for JDR and having the JDR judge as mediator because s/he is perceived to be “more authoritative.” The authority seen in a JDR judge apparently mitigates the ‘second hand’ justice that disputants could have from the mediation process. Without universalizing the oppression and discrimination of all women, these programs can be informed by data that may show that women more than men are likely to be disadvantaged or be discriminated against within the justice system, including in family law-related mediation proceedings. Physical injuries and/or wife battering is the most prevalent, accounting for 58.5%, of all reported VAW cases nationwide from 1999 to 2006. Although on a decreasing trend, these figures may not reflect actual incidence as they pertain only to physical and wife battering cases reported to the police.16 It is therefore not unlikely that domestic violence figures in and is implicated in family-law related mediation cases; and that it is women more than men who are victims of violence in the family and in intimate relationships. How does domestic violence affect the dynamics in mediation between spouse-disputants or among family members? How does domestic violence affect these disputants’ agency and capacity to negotiate a settlement equal to or close to their legal entitlements? Screening for domestic violence is one response of family law mediation programs in other countries, although this mechanism is also criticized for its ‘faulty” and difficult implementation. The JURIS Project’s ADR Toolkit for Mediators includes a similar screening mechanism in the guidelines recommended for mediators. It may need a comprehensive research on this aspect of family law mediation to identify what policy is appropriate to address problems related to domestic violence.17

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

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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. Family law mediation programs nonetheless should have safeguards to protect parties likely to be disempowered and disadvantaged. This holds not only for women (or particular groups of women) but also for other collectivities who may be likely disadvantaged in CAM for different reasons and on different grounds. c) CAM Process and Outcome (1) Prior Information on CAM Women disputants, according to the Womenlead study, “go through mediation with little information about the process. xxx More than half of (survey) respondents (57%) learned about mediation during the first day of hearing in the court. Some learned about mediation before the filing of their case (18%) and after talking to their lawyers (16%).” Women disputants have different reactions when they first heard about mediation. Respondents positively accepted the process by saying that they felt happy (28%) and ‘ok lang’ (2%). Some (21%) said that they felt happy because mediation can help the parties to discuss and solve the case among themselves. Only 4 percent of the respondents said that they reacted positively because they understood the process and they learned that mediation means lesser legal expense.

More than half of the respondents however initially reacted negatively towards mediation. Women disputants said they were confused (26%), afraid (16%), annoyed (14%), nervous (3%) and ashamed (2%). Some of the respondents (11%) also said that not knowing much about mediation and its process caused their negative reactions. The ADR study’s community survey to gauge awareness on CAM covered 308 respondents in La Union and Pampanga who were randomly selected within the 1 kilometer radius from the PMCs.

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Although the male respondents are largely unaware of mediation (95%), 99% of all female respondents (who comprised 53% of all survey respondents) said they were not aware of mediation.(Guillen 2007) Prior information about mediation helps disputants to accept it. The Womenlead study found how inadequate knowledge of the CAM process evoked varied emotions among survey respondents and affected how they communicated and negotiated, according to some respondents. Community awareness strategies could work when effective means of reaching the people are employed. Possible gender-based differences in respective roles, tasks, and routine can be studied to develop these strategies so that people in the community can have equal opportunity of access to mediation-related information. (2) Disputants as the Key Actors in the CAM Process i. Factors affecting participation in mediation Individual/Family circumstances Women respondents in the Womenlead study identified factors that affect their attendance in and their communication and negotiation during the CAM. The most common problem women encountered in mediation was ‘economic loss’ (61%) brought on by their inability to take official leave from work in order to participate or attend mediation. The lack of child care and family matters was also identified as a problem (28%) along with the inability to hire counsel (34%) and fear of failed mediation, litigation, and lack of privacy during mediation (32%). Women answered that these problems affected their expression of feelings during mediation (66%), as well as the expression of opinion (55%). Nearly half (49%) of the respondents said it affected how they were able to negotiate the terms of their agreement and how they dealt with the other party (49%). By contrast, only (12%) responded that having these problems affected the way they dealt with mediators. Likewise, only (26 %) thought it affected the results of mediation.

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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.

The Womenlead study concludes from these findings that: “(w)hile the problems the women identified are easily related to societal roles (being in charge of children, taking care of the home and family matters and working to support the family), they were not necessarily articulated nor identified as problems or issues associated with ‘gendered relations of power,’ or even ‘gender inequality.’ The fact that these ‘problems’ lie somewhat outside the system (court and mediation) means women rarely relate them to their cases.”

ii. Gender-based stereotypes, attitudes, and expectations The Womenlead study found that ‘social constructions of gender are shared by all parties to mediation.” These manifest in different ways: • Views about differences between women (talkative, more

expressive, emotional), and men (more quiet, less emotional, easier to deal with during mediation); or about the situation of disputants.

• Views about differences between male and female mediators and judges

- women mediators are more approachable and ‘open’ to displays of emotion than male mediators who maintain a distance from the parties.”

- women are more “patient’, and ‘strict’ than men . -women are more kind (65%) than men (59%)

-men are more fair (55%) than women (45%).

• Reasons for preferring mediators of a particular sex

‘‘women litigants are more comfortable with women mediators’ “ (our) cases involved facts that ‘only another woman (or a mother) can understand.’

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• Understanding of sex equality under the law -

“ ‘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.’ “

• Effects of gender biases

Gender bias can sometimes affect the outcome of a case, such as one case involving siblings and their inherited land. The Womenlead study cites as example a case in which the brother insisted that his sister had no right to the agricultural land since women do not till. The case could not be settled on account of this gender-biased belief.

It could also affect the communication during the mediation process. The process observations conducted by Womenlead’s research team showed that mediators could address only male parties, or that a male relative (who was not even a party to the case) could silence the daughter-disputant.

Mediators interviewed think that a lot of women litigants are very assertive and aggressive. (“liberated”) One of the female mediators pointed out that some women feel intimidated if the other litigant is a male. One of the male mediators said that most women litigants from rural areas feel threatened. They are usually uneducated and it is hard for them to open up. Educated women are more confident. (Womenlead study 2008)

The Womenlead study concludes that “(t)hese observations further reflect that the assumptions about gender differences including preferences about the gender of the mediator are held in common by mediators, judges and the women disputants. In a way, these operate as expectations upon which both the parties, mediators and the judges react or respond to.” 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

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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)

iii. Openness of both parties, cooperation

A mediator observed that it is easier to reach an agreement if the litigants are of the same gender. He also pointed out that women litigants are easier to deal with than male litigants. Women are more respectful and tend to forgive easily. They are more receptive to helpful suggestions. Male litigants tend to have a domineering attitude and bring their “macho” culture into the mediation proceedings. They are combative and feel like fighting it out –“Kung galit, galit. Kung bayad, bayad. Some male litigants even harass their female opposition. (Womenlead 2008)

iv. Relationships and Power Imbalance The ADR study found that perceptions of power imbalance appear to be more prominent in certain cases, e.g., ejectment, which also belongs to the highly contentious issue of land ownership in the country. However, when power imbalance in mediation is related to women and workers, few recognize its relevance. Again, looking at the cases brought to mediation in the five sites, these do not typically represent women as the disadvantaged party, compared with cases of sexual harassment, or violence against women. Similarly, counsels, court personnel and even judges in the five sites find that in general, gender has not been a major issue in their experience. Also, cases involving workers comprise civil cases, e.g., reckless imprudence, slight physical injuries, oral defamation, etc., and are not labor-management in nature. Though majority identified an association with their opponent, only 35% perceive power Imbalance in their relationship. … A predominantly gender-based relationship (man-woman) is acknowledged by only 5% when majority of the litigants involve women.

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.

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The Womenlead research report states that “(t)here is no single picture of how gender structures power relations in 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.” Women respondents on the other hand, expressed a preference for counsel not to be present during mediation or least for it to be led by the parties, and for legal counsel (when present) only to assist and give advice to the disputants. d) . Justness and Fairness of the CAM Process and Outcome/ CAM’s contribution to access to justice by marginalized sectors, and to access to justice by women . (1) Justness and Fairness of the CAM Process and Outcome The open and informal setting of CAM accounts largely for the perceived justness and fairness of the process Litigants see CAM/JDR as a novel way of settling disputes and welcome the openness and informality of the process where they can

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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) Mediators and women disputants both emphasized the ‘freedom’ in mediation to ‘talk about everything,’ that is, to define the issues in the parties’ own terms rather than in legal terms. Mediators acknowledged that women disputants seem to find ‘validation’ and have a sense of ‘importance’ (feel they are bida) in mediation. The women disputants expressed both relief and satisfaction that mediation gave them the space and opportunity to ‘be listened to,’ ‘express their feelings,’ and that they felt ‘freer’ to say what they wanted. (Womenlead 2008) 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

When compared to the fairness and justness of outcome, the survey respondents did not agree as much as they did with the fairness and justness of the mediation process, though they also represent the proportion of cases that settled. Looking at the number of responses under the settled and not settled cases categories, more respondents with cases settled under CAM/ JDR (213 or 65%) agree that there is fairness/ justness in the outcome of mediation. Respondents with cases that were not settled under CAM/ JDR comprise only 35% of those who agree that the outcome of mediation is fair and just. Conversely, more respondents with cases not settled (75 or 66%) do not agree that the outcome of mediation has been fair/ just, respondents with cases settled take up 34% (39) of those who do not agree. To a certain extent this goes to show that where cases are settled under mediation, its users are more likely to agree that its outcome is fair and just. This correlation between the positive outcome of mediation and perception is also seen in the Womenlead’s case study on support. For the three women claimants, mediation is a “way of asserting and claiming rights and attaining justice.”

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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. The case of Myrna (Womenlead 2008) shows that the open ‘mediation space’ and the direct communication between parties that it allows can outweigh the unsuccessful outcome of a mediation proceeding. 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, mediation was an enlightening process, … even when it did not result in a settlement…. Despite the outcome, she expressed that she would still recommend mediation to other women litigants, especially now that she is experiencing the inconvenience of having to attend numerous court hearings. Besides, she observed that in the mediation proceedings, she was freer to talk and she could confront Heidi directly. 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

(2) CAM’s contribution to access to justice by marginalized sectors, and to access to justice by women . 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)

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Complementing findings of satisfaction with CAM and perceptions of the justness and fairness of the CAM process and outcomes are findings on perceptions of CAM’s contribution to access to justice by marginalized sectors and by women. 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. It was revealing from this study that respondents’ perception of CAM’s contribution to access to justice is linked to two distinctive elements of court annexed mediation: openness and informality of the setting and process; and capabilities and attitude of mediators/JDR judges. Cost and time efficiency factors associated with CAM did not rate as high as these two elements, nor did they rank at all in respect of factors contributing to access to justice by women.19 ( 3) Implications These findings highlight how critical it is for the promotion of the access to justice objective of CAM to maintain the openness and informality of the CAM process, and to establish safeguards so that disputants come into this open and informal space with relative agency to engage and negotiate with each other. The role of and the 19 “ As for the factors that contributed to access to justice by marginalized sectors, the litigants rank them accordingly: (Guillen et al at 18) (23%) Time spent in mediation (2 months) (22%) Cost of mediation (PhP 15,638.00) (20%) Open and informal setting of the mediation (30%) Capability and positive attitude of the mediator, judge and court personnel. In order to determine the gender responsiveness of mediation in the pilot sites, this factor included a question on the mediator, judge and court personnel attitude towards women litigants, i.e., whether this facilitated an encouraging mediation process for women in settling their disputes.18% of the respondents find this factor contributing to the marginalized sector’s access to justice) (5%) Positive attitude of counsel (did not hinder the mediation process On the other hand, litigants rank the following factors as contributing to women’s access to justice : (Guillen et al at 19) (39%) Open and informal setting of the mediation (55%) Capability the mediator, judge and court personnel; 23% out of the 55% find that positive attitude of the Judge toward women contributes to women’s access to justice; (5%) Positive attitude of counsel (did not hinder during mediation) (1%) Positive attitude of judge during JDR

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capabilities and attitude of mediators/JDR judges, as these findings validate, is central to managing the CAM process – supporting disputants to be ‘enabled’ negotiators, ‘and correcting imbalances that could skew the relatively equal playing field assumed in the CAM process. The social context/gender equality aspect of CAM therefore incorporates an analysis of factors that can strengthen or undermine disputants’ assumed agency and their bargaining leverage in negotiation. This analysis, nuanced by the social constructionist thinking, examines the politics of and dynamics in the control of meanings in the CAM process, and considers the potential of narrative mediation as an alternative approach.20 Probing questions in the following areas can be part of this analysis.

o Are there gendered perspectives on communication and negotiation that are reinforced in the orientation of new CAM practitioners?

o Do these perspectives play out in CAM proceedings? o What biases or stereotypes based on gender or other status and

condition manifest in the CAM process and how are these stemmed?

o What strategies do disadvantaged disputants adopt in CAM to assert their agency or to strengthen their bargaining position? Are these strategies recognized in and supported by the CAM program and during the CAM process?

o Are there appropriate and adequate guidelines to help mediators/JDR judges in their managing, facilitative and corrective roles to ensure the openness and informality of the CAM setting?

o How are these roles balanced with the neutrality and impartiality expected of CAM practitioners?

Specific strategies can be directed at the practice of CAM although this will need to be complemented by those that address the CAM

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.

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design including its substantive foundations. Approaches can be theoretical, i.e. evolving expansive perspectives and analytical frameworks; and, programmatic, i.e. adopting and applying these perspectives in various aspects of the CAM program, design and practice such as the following:

(a) defining the range of mediatable cases; (b) enhancing the orientation curriculum for new CAM practitioners including in components on CAM philosophy and principles, communication, and negotiation;21 (c) formulation of guidelines setting standards in CAM practice, 22 (d) creating and establishing safeguards like screening for domestic violence and nuanced techniques for ‘correcting power imbalance; or (e) strengthening the organizational framework including monitoring and evaluation system for CAM.

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 The foregoing findings affirm the contribution of CAM to access to justice by marginalized sectors and women and show stakeholders’ perception of the justness and fairness of CAM process and outcomes. Narrative data tell of stories of disputants’ empowerment and of relationships restored.

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)

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The question then is not mediation or court adjudication that critics like Owen Fiss are wont to take. Fiss (1985) generally condemned settlement (i.e. mediation) for “its reliance on bargaining and acceptance of “inequalities of wealth as an integral and legitimate component of the process.” Adjudication is preferable because of its “use of accountable public officials seeking to explicate and give force to the values embodied in authoritative texts such as the Constitution and statutes,” rather than the intervention of strangers chosen by the parties to “simply secure the peace.”23

Without dismissing the meritorious caveats that criticisms like those of Fiss offer, this paper chooses to end instead with a challenge: How can the court-annexed mediation TRULY serve and continue to serve as a forum in which justice and rights are promoted especially of the disadvantaged and marginalized groups and collectivities?

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

ANDREW MICHAEL S. ONG Mr. Ong received a B.S. Architecture from the University of San Carlos and an L.L.B. from the University of the Philippines. He placed No. 1 in the government licensure examination for Architecture and No. 6 in the Bar Examination. He is currently the senior partner of Ong Villamor & Fabiosa Law Firm, which is a boutique intellectual property law firm based in Cebu, Manila and alliance offices in 12 jurisdictions in Asia. Aside from his patent and trademark law practice, Mr. Ong consults with the Philippine Judicial Academy in connection the court-initiated mediation initiative of the Supreme Court. He was first involved in the appellate court mediation program as a Mediation Specialist, from EGTA, USAID, where he assisted in drafting the Supreme Court guidelines for, and supervised the implementation of the mediation pilot project for the Court of Appeals. In the past 5 years, Mr. Ong was appointed as the Project Administrator of the Justice Reform Initiatives Support Project to initiate and manage the ADR model courts practicing court-annexed mediation as well as judicial dispute resolution. Mr. Ong teaches intellectual property law and alternative dispute resolution in the College of Law in the University of San Carlos, and is currently heading an IP advocacy group – I.PRrotect.

PROF. ALFREDO F. TADIAR PROF. ALFREDO F. TADIAR is considered as the “Father of Alternative Dispute Resolution (ADR) in the Philippines”. His legal career spans 53 years which officially began when he topped the bar (13th place), in 1955. As a law practitioner, he was appointed as the youngest trial judge at the age of 29. Graduating Ll.M with distinction from Harvard University, he became a UP Law Professor, teaching Remedial Law and Criminal law for more than 20 years. As Director of the UP Office of Legal Aid, he authored the Law Student Practice Rule (138-A) and the Katarungang Pambarangay Law. He was also the pioneering Chair of the government panel that successfully negotiated peace with military rebels. He served as the Chair of the National Amnesty Commission that facilitated the

About the Authors 160

granting of amnesty to 25,000 rebels. As the first Chair of the ADR Department of the Philippine Judicial Academy, he led the revision of the training curriculum for mediators in trial courts and the Court of Appeals. He authored the Implementing Rules of the OGCC and the Revised Rules of Construction Arbitration and shifted training methods to the more effective exercise-based and skills-building andragogic methodology.

IMELDA D. GIDOR Atty. Imelda D. Gidor is a staunch advocate for children/women rights and in recent years, for alternative dispute resolution (ADR), which gave her the opportunity to bring the law “closer” to the people, either as resource person, training faculty, or through development of training modules.

As a Supreme Court-accredited mediator, she has contributed significantly to the Justice Reform Initiatives Support Project (JURIS) - Court-Annexed Mediation (CAM) Program. She is a practicing mediator in the Philippine Mediation Center-Bacolod Unit. She also serves as a resource person in trainings, workshops and similar fora in Bacolod City, Baguio City’s JURIS-CAM Basic Mediation Course in 2006, and in the Lawyer’s Orientation & Workshop in La Union, Baguio City and Cagayan De Oro City, also in 2006. Now a practicing lawyer based in Bacolod City, she is a magna cum laude alumna of the U.P. School of Economics (1990). After working at the National Economic & Development Authority (NEDA), Pasig City, as an Economic Development Analyst, she completed her Bachelor of Laws (1996) at the U.P. College of Law.

CAROLYN A. MERCADO

Carolyn A. Mercado is a senior program officer with The Asia Foundation in the Philippines. In this position, she manages the Law and Human Rights program. She assists in the development, implementation, monitoring, and evaluation of other selected activities within the Foundation's Law and Governance program and handles mediation and conflict management, and other forms of dispute resolution processes. She also served as a temporary consultant to the Asian Development Bank on the Strengthening the

About the Authors 161

Independence and Accountability of the Philippine Judiciary project and the Legal Literacy for Supporting Governance project.

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.

She obtained her BA in Political Science and LL.B. from the University of the Philippines. She was also a Hubert Humphrey Fellow in International Environmental Law, University of Washington and a European Union Scholar in Environmental Resource Management, Maastricht School of Business in the Netherlands.

DAMCELLE TORRES-CORTES

Damcelle Torres-Cortes is a Program Officer of The Asia Foundation Philippines. In this capacity, she assists in the management of the Foundation’s law and human rights program, including development, implementation, monitoring, and evaluation of court-annexed mediation (CAM) and other alternative dispute resolution (ADR) projects. She is a volunteer lawyer in a weekly radio program popularizing ADR and laws on women and children. She is co-author of two books on gender jurisprudence and has engaged in intellectual property and litigation practice. Previously, she served as a Senate Legislative Officer, contributing to the drafting of the Juvenile Justice Law and in the review of the ADR Law Rules. Atty. Torres-Cortes was former Commissioner for the Youth of the National Commission on the Role of Filipino Women. She received her Bachelor of Arts in Social Science from the Ateneo de Manila University and Bachelor of Laws from the University of the Philippines.

About the Authors 162

SALVADOR PANGA, JR. Atty. Salvador Panga, Jr. has been involved in Alternative Dispute Resolution work for the past decade. He graduated from the UP College of Law and obtained his LL.M. in Dispute Resolution from the University of Missouri-Columbia in 2001. Subsequently, he completed an internship at the ICC International Court of Arbitration in Paris. From 2004-2006, he was the ADR Postgraduate Fellow at the Dispute Resolution Institute of the Hamline University School of Law in Minnesota, where he played a key role in the design, development and management of Hamline’s ADR programs in Rome, Paris, London, Bilbao and the United States.

Currently, he is a senior partner at Parlade Hildawa Parlade Eco & Panga (PHPEP), a law firm specializing in arbitration and ADR. He is also the Secretary-General of the Philippine Dispute Resolution Center and has been a consultant in many initiatives to develop ADR in the Philippines.

Atty. Panga is admitted to law practice in the Philippines and in New York.

MARIA RODA L. CISNERO

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.

MRLC stumbled upon developmental work and alternative lawyering at the Ateneo Human Rights Center, where she interned during law school. She considers herself a continuing intern and student of law and thanks her involvement in the JURIS project for opening doors that helped her pursue her passion to learn the law while finding others ways and means to engage the law to best serve the people.

ELEANOR C. CONDA Eleanor C. Conda has more than 16 years’ engagement in the promotion of human rights especially of women. She headed or coordinated national, regional and international feminist legal and women’s rights advocacy organizations and networks. She sits in advisory boards and working groups of Asia-

About the Authors 163

Pacific and international networks promoting women’s human rights, and campaigning on women and conflict-related and other issues. Eleanor provides advisory and consultancy services to UNIFEM and government agencies / organs in the Philippines and in other countries in Asia on CEDAW-based law reform, capacity strengthening for human rights treaty compliance, and strategic direction setting. 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

PARTIAL LIST OF GOVERNMENT AGENCIES PRACTICING MEDIATION

AGENCY TEL.NO / WEBSITE RULE

Commission on the Settlement of Land

Problems (COSLAP)

9291123 -Commisioner’s Office

9297324 – Legal Department COSLAP Rules of Procedure

Cooperatives Development Authority

(CDA)

7258536 – Legal Dept. www.cda.gov.ph

Board Resolution No. 60, series 2006: Revised Procedures for Mediation and Conciliation at

the Cooperative Level

Department of Labor and Employment

(DOLE)

www.nlrc.dole.gov.phwww.ncmb.dole.gov.ph

Dept. of Trade and Industry (DTI)

www.dti.gov.ph

Rule 10, DAO 7, Series 2006: Simplified Uniform Procedure for Filing Cases with DTI

Housing and Land Use Regulatory Board

(HLURB)

(02) 9243367 – Legal www.hlurb.gov.ph

Resolution 802, series 2007: Amending Rules III & X of 2004 Rules of Procedure to

Incorporate Rules on Mediation

Insurance Commission (IC)

(02) 5328462 to 70 Public Assistance and Information Division

National Commission on Indigenous

Peoples (NCIP)

(02) 3745951 – Legal Atty. Dunuan

Administrative Circular 1-2003: Rules on Pleadings, Practice and Procedures Before the

NCIP

Office of the Government

Corporate Counsel (OGCC)

www.ogcc.gov.ph

Rules 10-12, Implementing Rules and regulation of the Office of the Government

Corporate Counsel

Presidential Commission for the Urban Poor (PCUP)

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PREFACE The concept of “Alternative Dispute Resolution” or ADR is coming of age in the Philippines, with the passage of the ADR Law, and the introduction of mandatory court annexed mediation in the Philippine Judiciary. Although mediation, conciliation, and arbitration are usually referred to as variants of the practice of ADR, the term “alternative” has been the subject of much discussion. Indeed, when one considers the adversarial mode of conflict resolution, very much institutionalized in the courts, then mediation truly offers a desirable alternative to such a process. However, when one considers the historic Filipino tradition of settling community disputes through mediation along with the existing social practices of many indigenous peoples in the country that utilize mediation through their elders, then this modern day approach does not seem that modern at all. Be that as it may, the introduction of ADR in the judicial mainstream is a very welcome development. The empirical studies conducted in the technical studies of the Justice Reform Initiatives Support (JURIS) Project reveals a lot of promise in the use of ADR to promote access to justice, gender equality and court decongestion. These studies also show the over-all satisfaction with ADR as a means of resolving disputes. However, the program is not without its challenges, at various fronts – organizational, conceptual, philosophical, and operational. 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 Introduction to this compilation was written by Atty. Andrew Ong, a Court of Appeals Mediator and the Project Administrator of the ADR Strengthening Component of the project. He orients the reader on the process and factors that gave rise to the multi-stakeholder approach to the installation of ADR, borne out of JURIS’ own experience with the project. He presents the importance of the involvement of various stakeholders in the ADR process, including judges, lawyers, mediators, and civil society, to ensuring the

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sustainability and continuity of the initiatives introduced by the project. 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.

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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. Through this publication, JURIS hopes to contribute to the literature on ADR as it is being practiced in the Philippines. It is the

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organization’s hope that serious students of ADR would learn from the lessons that have been culled from the experiences presented in these pages, based on more than fifteen years of installing, implementing and evaluating ADR practice. This collection does not pretend to be the last word in the practice of ADR in the Philippines, nor does it cover all of the facets of the said practice. But, JURIS certainly hopes that it does cover a significant slice of the experience, so that it could serve as a platform for improvement and innovation in the future. For more information on court annexed mediation, judicial dispute resolution and appeals court mediation, JURIS invites the readers to log on to www.pmc.org.ph, the official website of the Philippine Mediation Center of the Supreme Court, which is the organizational expression for all ADR-related activities of the Supreme Court. In closing, JURIS would like to thank the Canadian International Development Agency (CIDA), more particularly the Head of Aid, Mr. Tom Carroll, and our Senior Program Officer, Ms. Narcie Rivera, for their continuous financial and moral support to JURIS. The organization would also like to thank all the contributors to this anthology, for without their insights and reflections, this collection would not be possible. Finally, we would like to thank our graphic designers, Mr. Danvic Briones and Mr. Ronald V. Chungtuyco, our editor, Ms. Charina Ubarra, both professors at the De La Salle – College of St. Benilde, who put together this book for all to see and appreciate. Atty. Hector D. Soliman JURIS Local Project Director June 9, 2008

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Data\Microsoft\Templates\Normal.dot Title: PREFACE Subject: Author: JURIS Project Keywords: Comments: Creation Date: 6/29/2008 6:00 AM Change Number: 9 Last Saved On: 6/29/2008 1:26 PM Last Saved By: lhg Total Editing Time: 36 Minutes Last Printed On: 6/29/2008 1:26 PM As of Last Complete Printing Number of Pages: 4 Number of Words: 1,470 (approx.) Number of Characters: 7,763 (approx.)