Group 5: Apolonio, Follante, Lumasac

JUDICIAL DISPUTE RESOLUTION (JDR) AS AN INNOVATIVE MODE OF DISPUTE RESOLUTION

Salvador S. Panga, Jr.

Judicial Dispute Resolution

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.

Recasting the role of judges from magistrates to mediators

Goals

1. Value Creation
2. Problem Solving
3. Option Generation
4. Improvement of relationship between parties ( more than ascertainment of the rights of the
parties)

The Process of JDR

Rule 18 of the Rules of Court outlines the importance of Pre-trial proceedings in order to
determine the possibility of an amicable settlement. This Rule also recognizes the authority of a judge to
facilitate a settlement between parties. But judges think that any attempt on their part to facilitate a
settlement may lead to a perception of bias or undue interest that may prompt a party to seek their
disqualification or worst.

Judicial proceedings

Judicial proceedings are divided into two stages:

1. Filing of complaint up to the completion of Court annexed mediation and Judicial Dispute
Resolution.
2. Pretrial, trial and judgment.

JDR is a second tier mediation system. Under the proceedings, all civil and criminal actions falling
under the category of mediatable cases are first referred to a court appointed mediator who is given 30
days to facilitate a settlement. If the case is not settled through CAM, they are referred back to the
judge to whom the case was originally been assigned for a second attempt of mediation and that is JDR.
If it is still unsuccessful, the case will be re-raffled to a different judge for trial.

As a rule, the JDR judge is not permitted to preside over the trial if the mediation does not succeed
except if specifically asked by the parties to continue as trial judge. The reason for this rule is to
encourage candor and full participation by the parties who may be reluctant to participate given the
knowledge that the information received by the judge may be deemed admission by the judge and be
used as evidence against them.

In JDR, the judge is free to adopt any approach or settlement techniques as he may deem proper:

1. Mediation
2. Conciliation
3. Neutral evaluation
4. Or a combination of any of these techniques

Trainings for JDR

Judges undergo days of training for JDR. They are trained by experienced JDR judges,
communication experts, officials from PhilJa and office of the court administrator. Their trainings include
lectures, role playing, mediation theories, practical exercises, teaching demonstrations, discussion
groups and experience sharing.

History

JDR was introduced in 2004 under the JURIS PROJECT as an adjunct to Court Annexed
Mediation. It was initially introduced and pilot tested in 1st and 2nd level courts in Pampanga, Bacolod,
Baguio/Benguet, Cagayan De Oro, San Fernando La Union. By 2007, the program was in place in 156 trial
courts and since then approximately 5000 cases underwent Judicial Dispute Resolution. In 2008 it was
introduced in Metro Manila.

The Research Project

In 2007 JURS PROJECT commissioned a research team to evaluate the current state of the JDR
program.

Goals

1. Identify the factors that would make the program more effective
2. Ascertain the effectiveness of the program
3. Determine the possibility of extending the program to other areas
4. Determine the rate of approval or disapproval of the end users in terms of value, fairness and
acceptability of the program.

2 major aspects of the research

1. Rate of actual case dispositions

2. Views of end users

Indicators used

1. Efficiency
2. Effectiveness
3. Satisfaction of stakeholders
4. Program organization
5. Service delivery
6. Program quality

Method

Qualitative and Quantitative

The Findings

I. Case disposition rate

It is uneven among the pilot areas but the overall rate is 47%. In the 3500 cases which went
through ADR almost half were successfully settled. This is a good indicator, considering the fact that
JDR is a second tier ADR process which involves more difficult and complex disputes which already
went through CAM.

II. Satisfaction of stakeholders

Who are the stakehoders

1. Judges
2. Lawyers
3. Litigants

Judges Lawyers Litigants

In terms of Perceived as usefull in 1st level courts but not so much in 2nd level
usefulness in courts
resolving court
disputes

Role of Judges Judges can be mediators

However some says that the precious time of Judges should be spent
in deciding cases not in mediation
Fairness of the Yes. Yes.
Process 1. It is fair for
both parties
2. The judges
are able to
explain the
mechanics of
the JDR
3. The judges
are helpful in
the processs
of reaching a
 settlement (
using their
own standard
of fairness)

Can a judge use his own standard of fairness in helping the parties reach a settlement?
61% of the judges said that the parties should be given a free had in deciding the terms
of the settlement.
Some judges from Pampanga believe that it is appropriate for judges to tell a party what
he thinks the result will be if the case went through tial, in order to encourage the parties o
settle.

Judges Lawyers Litigants

Satisfaction 96% of the judges 88% agree 85% agree
with the agree
outcomes

However a significant portion of the litigants in Baguio and Bacolod expressed ther
dissatisfaction.
Popular Reasons:
1. Mistrust with the courts
2. Pragmatism
3. Unfavorable decision
4. Rights based expectations
Judges Lawyers Litigants
Improved Yes Yes. However some Yes
Relationships lawyers are
concerned about the
possible reduction of
lawyer’s fees as
occasioned by the
early settlement of
cases. There will be a
decrease on their
income so they are
pointing out to
adjustments of the
fee structure.
Time and Cost Yes.
efficiency JDR involves no fees
It accelerates dispute resolution
It frees up court resources

III. Program Organization

 The respondents generally agreed that the program is well designed with its adequate standards
and that it has achieved its most important goal of reducing the court’s case loads. However the
respondents from Bacolod and Pampanga expressed their disagreement, stating that there are
sufficient existing procedures in place to guide the participants in reaching settlement. Also some
respondents believe that the program still needs further modifications.

IV. Qualities of Lawyers

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.

Program Observations and Recommendations

1. JDR generated positive outcomes in so far as first level courts are concerned. However, the
impact of JDR before the 2nd level courts is still unclear.

Reason:
The parties have much greater incentive to settle early before the first level courts
because of the limited penalty or amounts that 1st level courts are legally allowed to impose or
award. In addition to this, because of the tougher penalties and higher cost of preparation
before the 2nd level courts, the parties may be more willing to go to trial.

Recommendation:

There is a need for futher training of judges especially 2nd level court judges. For JDR to
achieve same level of success in 2nd level courts, the judges may have to attain a higher level of
competence in JDR.

2. There is a limited amount of judicial resources for trainings of judges

Reason:

The trainings will require considerable financial investment

Recommendations:
The creation of 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.
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.
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.
3. 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.

Reason:
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.

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

Reason:
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.

5. Clarification of the judges’ role in JDR

Reason:
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. Not only is active guidance preferred by
the stakeholders, but failure to provide such, is viewed as resulting in unfairness or unfair
outcomes.

There is nothing that prevents judges from combining facilitative and evaluative
techniques. The researched emphasized the following:

(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.

6. Initiatives for enhancing awareness of lawyers and litigants on JDR should be adopted.

Reason:

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.

Recommendation:

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

7. 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.

Recommendations:

Give emphasis on informaing the parties of their rights to settle or not to settle

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 of subpoenas, 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.

Conclusion

The three-year JDR experiment has clearly yielded extremely encouraging results. 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.