An Alternative Dispute Resolution Observation

by Roz Lourdiz P. Camacho

Ll.B. 2-C


Introduction

Going through the process of litigation in courts is a tedious
business and could instil apprehension in the person of those who
enter the portals of a courtroom. Countless cases of unforeseen
trauma can testify as to how staggering and complex a lawsuit can
be. Aside from the inevitable dread brought about by appearing
before a judge, humiliation of being in a court stand and proving your
allegations to be right, there is also the burden of having to pay the
necessary fees. Acquiring justice is, after all, not only obtained
through papers but through payment of various costs. Such can also
lead to sleepless nights and long periods of waiting uncertainly for a
final verdict. Hence, it is not surprising that, given the chance, the
ordinary layman would rather choose an easier way out of court
proceedings rather than be sauted in a dish of court costs,
inconvenience, anxiety, and, in some instances, squandered time.

Indeed, being a principal participant in any case is no joke.
According to Moses Henry Grossman, an American judge, four out of
five potential litigants will settle their disputes the first day they come
together, if you will put the idea of arbitration in their heads.
Resolving conflicts can become too tiresome when parties endlessly
butt heads in court rather than come to agreements in a calm and
pensive manner. Now, the parties can find relief in being able to avail
of Alternative Dispute Resolution (ADR) which can alleviate their fears
as well as reduce the charges for coming to a peaceful termination of
their case.

Having witnessed firsthand the mediation process, I can attest
as to how agreeing parties can engage in civil and practical
negotiations despite their differences and indifferences. However,
there are still instances which indicate that ADR is not always a
panacea or cure-all for any dispute.

The Cases

The proceedings that I have observed included suits for estafa,
collection of a sum of money and theft. In these cases, the complaint
for estafa ended successfully albeit prolonged due to numerous
disagreements between the parties. On the other hand, the second
mediation for the collection of money went rather smoothly and was
the epitome of a win-win scenario when the respondent approved
at once of the payment scheme presented to her by the complainant.
The last case, however was reset since both parties could not come
up with a definite solution to their issue at hand.

The Mediator

The above-mentioned cases were all handled by the same
mediator, a male and the youngest officer in the mediation office.
Based on how he dealt with the assortment of parties, one could say
that he has performed the task of structuring communication
between the warring sides. The mediator explained to the parties
beforehand what a mediation proceeding is, what it is not, and the
advantages that it could result to once the parties reach an
agreement. He was able to obtain the trust of the parties by talking
to each party separately prior to a joint meeting between them.
Because of this personal interaction with the mediator, the individuals
subjected to mediation seemed to be candid in giving their own side
of the matter.

Being the central figure in the mediation process, the mediator
controlled the tempo of the proceeding and sought common areas of
agreement between the parties in order for them not to head into a
stalemate. He was ever patient even if one complainant had a trying
attitude. He asked for clarifications whenever something was unclear
to him or to one of the parties. There are instances when he would
give his own insights such as saying, if it were up to me... or
personally, I suggest that... but never pushes anyone to do exactly
as he says. The mediator also persuades the parties to talk out their
conflicts and even vent their feelings which led to a teary apology
from the estafa cases defendant for having duped the plaintiff.

Lastly, the mediator asked the parties to come up with
alternative solutions that will most likely be beneficial to or attain the
goals of both sides. Once the parties have made up their minds as to
what would be the best or, if not, the most practical way to solve
their dilemma, the mediator asks them to put their settlement in
writing so that it would be binding upon both parties.

The Parties

In the first case of estafa, the plaintiff was a nurse applying for
work abroad and the defending party was the owner of a recruitment
agency. The said agency was not a licensed one and the defendant
swindled the complainant. The defendant was apologetic and offered
to pay back the amount taken by her, including damages. However,
the complainant appeared unmoved and voiced out her disdain of the
defendants acts which led to her suffering. Eventually, the plaintiff
was persuaded by the mediator to forgive the complainant and
accept the offer given to her. The entire proceeding became lengthy
due to the plaintiffs whinges and her deportment was most
disagreeable when she cut off the mediator midway in his talk saying
that she already knew what he was talking about.

The parties in the second case were quite amiable towards one
another. They were laughing together and conversing in such a way
as close friends would. The object of this suit was the amount of
36,000 Php loaned by a teacher who was unable to pay it when
demand was made by the creditor. The creditor sent a representative
in her stead who computed said debt and both parties agreed
without much ado that the respondent shall pay 2,000 Php per
month for three consecutive years.

The last issue, a suit for theft, was brought against a woman
who was accused of shoplifting. The complainant has already been
detained for four months. An agent came in lieu of the aggrieved
party but said representative said that he was not knowledgeable of
the options that are given by his principal in such cases and so could
not decide by himself. All the same, he promised to inform the
complainant if the accused had any offer. The accused could not
provide for any offer yet but agreed to the mediators advice that she
write a letter of apology and have it delivered to the complainant.

In all three cases, the parties were willing to succumb to
mediation although some of them were indifferent to the personal
circumstances or feelings of the other party.

The Gaps

There were not so many gaps in the proceedings but it would
seem that some of the parties are not very punctual when it comes
to mediation. There also times when the complainants are indifferent
that they either stall the process by going on about the damages
they obtained and the relief they vehemently seek. It is vital that
such information be known by the mediator. Nevertheless, it is very
impolite, even in normal conversations, to cut off anyone mid-
sentence especially the mediator who was, in the first place, sought
to help out the parties in their endeavours.

The Atmosphere

The room in which the mediations were held was plain and
conducive for holding in meetings for the parties. It is not
somewhere familiar to either the complainant or the respondent and
does not set any home court advantage to either. The atmosphere of
the place is busy at some corners but the area where the mediator
and parties are seated are free from any disruption, ensuring that
there is confidentiality and some privacy in their communication. The
setting is not so formal as the area is not enclosed but the mediator
makes certain that the parties are comfortable before he starts the
conciliation.

Personal Observation

As a spectator of the workings in a mediation process, I have
observed that the mediator is meticulous in obtaining the facts as
well as in gaining the trust and confidence of the parties. The
documents needed for the proceedings are prepared early to prevent
delay and simple matters are not delved into deeper to prevent
complications.

There is also no prescribed language or dialect for the parties
to use during mediation. They are free to express themselves in a
tongue common to them and the mediator acquiesces by talking in a
language that both could understand such as speaking in Filipino
when one of the parties cannot understand Hiligaynon.

Not only do the parties have the freedom to converse in their
language of choice, they are also allowed to bring with them some
company to aid them or boost their morale during the proceedings,
such as their counsel or a close family member.

Recommendation

Since the goal of ADR is to craft a binding truce between
conflicting parties, it would be better if there is an application of
cultural or social-spending approaches and not merely formal settings
for a negotiation. It could help if the environment was more relaxing
and kept more private such as holding the mediation in the home of
the mediator or any other private and comfortable place with the
same goal of reaching an agreement.

The Philippine set-up of ADR can also adhere to the practices
being done in the United States as well as Europe wherein the pre-
trial stages of the court proceedings are effectively used by judges to
persuade parties to mediate and settle their cases. Status hearing
should be done on a regular basis so that the settlement or progress
of pending cases is monitored well.

Conclusion

Alternative Dispute Resolution is, without doubt, a vital addition
to the serving of justice in the Philippines. It may have its flaws and
cannot always be a bed of roses for all parties involved but the
prominence of its benefits outweighs whatever detriment it can
cause. It may not be the in thing at this time but it will certainly be
known in the near future as the preeminent method of resolving
conflicts without burdening the litigants as well as the courts. The
Filipino people are bound to gain serious legal reform with the
utilization of mediation and other alternative dispute resolution
modes.