Mediation: A useful tool to unclog dockets

MANILA, Philippines—At present, the less than 2,000 incumbent judges are saddled with about a million pending cases. This means that, on the average, each judge has to shepherd over 500 litigations, a horrendous task by any standard.

Alternatives to litigations. Despite best efforts, the case congestion worsens every day due mainly to the avalanche of new filings. Besides, the rendition of a judgment by a lower court may not necessarily reduce the total backlog. It may merely mean a shift of the burden to an appellate court.

To move the wheels of justice faster, the Supreme Court, via the on-going Action Program for Judicial Reform (APJR), is undertaking several measures, like getting more judges appointed, making them work harder, computerizing the judicial system, streamlining the Rules of Court, and promoting the use of alternative dispute resolution (ADR) methods. Today, I will focus on mediation. Next week, I will take up arbitration, another ADR of choice; and at some other time, “out-of-court” mediation.

A full-blown litigation has many disadvantages. It is tedious, time-consuming, stressful, expensive, and often ends up in broken relationships and permanent animosities. Instead of healing controversies, judgments sometimes inflict deeper social wounds and engender vengeance as well as new cycles of violence.

Win-win solutions. On the other hand, mediation solves disputes speedily, conveniently, peacefully and less expensively. Being less confrontational, it conforms to the Filipino way of ending problems sans loss of face. It produces “win-win” solutions. Since it is conducted diplomatically by professional mediators, it can even improve relationships among the parties after the problem is solved. It may be used prior to, or concurrent with, an actual court litigation.

Mediation is not a newly-minted technique. It is as old as civilization itself. In the past, however, it has been frowned upon by the judicial establishment on the theory that it ousts the courts of their jurisdiction. But now, the e-age trend is to welcome all methods to end disputes speedily and conveniently so the judiciary can focus on public interest cases that can neither be mediated nor compromised.

To test the effectiveness of mediation, the Supreme Court asked the Philippine Judicial Academy (Philja) in early 2001 to train initially about 400 mediators. After finishing their training, the mediators worked on actual cases pending in the National Capital Region, Cebu and Davao. Voila! In less than two weeks, they were able to settle 80 percent of the 1,000 cases referred to them, some of which were more than 10 years old!

The Supreme Court was so impressed with this pilot program that it institutionalized court-annexed/referred mediation as a tool for decongesting court dockets. It mandated the Philja to prepare a curriculum to educate mediators and it established the Philippine Mediation Center (PMC), with units all over the country, as their home. A mediation fee is now collected for every new case filed. And all new cases, with the exception of the “non-mediatable” ones, are subjected to mandatory mediation as an essential part of the pretrial proceedings.

Second phase of court-annexed mediation. If the mediation is unsuccessful, the pretrial will then proceed. However, a ?phase two? mediation, called “Judicial Dispute Resolution” or JDR for short, has been successfully piloted in the San Fernando (Pampanga) and Bacolod regional trial courts (RTCs). Here, the pretrial judge (to be called the JDR judge) tries to resurrect the failed process conducted by the professional mediators. This is an innovation proposed by the National Judicial Institute of Canada.

Using their moral ascendancy, the previously-trained JDR judges act as “conciliators” and reconcile the differences of the parties. The JDR judges may also take the role of “neutral evaluators” and make non-binding assessments of the parties? claims and arguments. If the JDR judges still fail to persuade the parties to settle, the case is then re-raffled to a new judge for trial and judgment. The JDR judge is prohibited from discussing with the new trial judge anything taken up during the failed mediation. And any offer or admission made during the JDR is not admissible in evidence during the trial. A knowledgeable JDR pioneer is Executive Judge Adelaida Ala-Medina of the San Fernando RTC.

A new profession. Mediation has become a new profession. Court-annexed mediators are now screened and trained professionally by the Philja. After passing an internship program, they are accredited by the Supreme Court. Mediators need not be lawyers, but they are required to have a four-year bachelor’s degree. Like attorneys, they are deemed “officers of the courts.”

I was so convinced about the need for ADRs to solve our festering backlog problem that, prior to my retirement as chief justice, I convened a two-day “National Conference on Court-annexed ADR Mechanisms” on Nov. 27-28, 2006. During this confab, which was funded by the United States Agency for International Development and The Asia Foundation, court-annexed mediation was singled out for some amazing results. For instance, of the 35,223 cases mediated from 2002 to October 2006, about 24,983 were settled, translating to a 71 percent success rate!

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