CELSO LACSON JR.

Ll B 2C ALTERNATIVE DISPUTE RESOLUTION April 8, 2016

THINKING OUTSIDE THE BOX: The Pursuit of Justice outside the Courts

I. INTRODUCTION

"Alternative Dispute Resolution System”, according to Republic Act 9285 (Alternative

Dispute Resolution Act of 2004), means any process or procedure used to resolve a
dispute or controversy, other than by adjudication of a presiding judge of a court or an
officer of a government agency, as defined in this Act, in which a neutral third party
participates to assist in the resolution of issues, which includes arbitration, mediation,
conciliation, early neutral evaluation, mini-trial, or any combination thereof.

Furthermore, according to the said law, it is the policy of the State to actively
promote party autonomy in the resolution of disputes or the freedom of the party to make
their own arrangements to resolve their disputes. Towards this end, the State shall
encourage and actively promote the use of Alternative Dispute Resolution (ADR) as an
important means to achieve speedy and impartial justice and de-clog court dockets. As
such, the State shall provide means for the use of ADR as an efficient tool and an
alternative procedure for the resolution of appropriate cases. Likewise, the State shall enlist
active private sector participation in the settlement of disputes through ADR. This Act shall
be without prejudice to the adoption by the Supreme Court of any ADR system, such as
mediation, conciliation, arbitration, or any combination thereof as a means of achieving
speedy and efficient means of resolving cases pending before all courts in the Philippines
which shall be governed by such rules as the Supreme Court may approve from time to
time.2

In various law schools in the Philippines, Alternative Dispute Resolution is a two-unit

subject. Litigation within the halls of justice is what many Filipino Lawyers do best. Students
of law are trained to think like lawyers, but they are not prepared to deal with they should
do best: solve their client-problems and resolve their disputes with the least amount of time
and expense. The key to decongest the courts is that students should be trained to be
sensitive to their client’s wishes to settle their conflict or dispute swiftly and without expense
to court trials. This fact alone is what moved the Philippine Legal Education Board to
incorporate the subject to our present legal curriculum. The use of Alternative Dispute
Resolution (ADR) techniques has continued to expand as clients look for ways to save time
and money when resolving their disputes.

II. PERSONAL EXPERIENCE

On the day of court observation, the mediation center only had two pending disputes
that needed settlement. The room was the size of an ordinary courtroom typically found
in the Philippines.
The first case was about physical injury. The parties and the mediator were speaking
in local vernacular, Hiligaynon, to better understand each other and facilitate a clear
exchange of ideas and solutions to their dispute. The defendant himself was absent and
was only represented by his counsel through a Special Power of Attorney, while the
plaintiff was physically present during the mediation. The mediator was a man of late 50s.

_____________________________
1. RA 9285

2. RA 9285
CELSO LACSON JR. Ll B 2C ALTERNATIVE DISPUTE RESOLUTION April 8, 2016

The parties resolved that, after 10 minutes, the case will be forwarded to the court
for judicial dispute resolution.
The second case involved the re-sale of property back to its original owners, due to
an misunderstanding that arose between the parties to the sale of the said property. The
plaintiff himself was absent but he was represented by his counsel through a Special Power
of Attorney. The defendant herself was absent due to unknown reasons. She was,
however, represented by her husband.

Two of the more common questions asked by parties referred to mediation relate to
what happens after the mediation is terminated, namely: (1) if a settlement is not reached,
what disadvantage do they face for making disclosures in the course of mediation; and (2)
if a settlement is reached, how can they enforce the compromise agreed to in mediation.
The Philippines has, by law, laid down two (2)significant principles that answer these “post-
process” issues: (a) the rule of confidentiality and (b) the rule on enforcement of mediated
settlements.

Despite the best practices in some of our mediation centers and its documented success
(at least insofar as court-related mediation is concerned), the Philippine legal and
regulatory environment for mediation still has significant deficiencies, which must be
remedied or improved so as to allow disputants in the country to enjoy, to the fullest extent,
the benefits of mediation as an ADR mechanism.

Through education and information dissemination, the general public should be made
aware of the benefits of mediation and should be disabused of the possible misimpression
that mediation is an inferior ,second, choice to litigation rather than a co-equal alternative.
This writer believes that, armed with a correct appreciation of mediation, the Filipino people
would resort to this ADR mechanism with more frequency and enthusiasm as it would be
culturally appropriate for a nation that is composed of individuals naturally averse to
emotional and adversarial confrontation.

III. RECOMMENDATIONS

As a 2nd-year law student, it is with humility that I recommend to the legal profession a
set of written principles that will govern the conduct of mediation. The passing into a
statute of a Code of Ethical Conduct for Alternative Dispute Resolution would be a big
leap towards a more comprehensive and beneficial system. There must be the adoption
of fundamental legal rules aimed at creating a legal environment that assures the
parties of consistency, reliability and quality in the conduct of mediation.

Further recommendations are:

1. Mandatory training and accreditation of mediators;

2. Filtering of disputes and specialization of mediators;

3. Reliability and transparency in procedure

4. Imposition of impartiality of mediators;

5. Categorical and detailed rules on confidentiality of information

disclosed and obtained in mediation, waivers, exceptions and

CELSO LACSON JR. Ll B 2C ALTERNATIVE DISPUTE RESOLUTION April 8, 2016

sanctions for breach;

6. Formulation of a process for the quick enforcement of mediated

settlements;

7. Availability of limited, well-circumscribed and expeditious judicial

intervention for interim measures of protection and confidentiality

orders.

Suggested areas of improvement including matters pertaining to the following:

1. competence, training, accreditation and appointment of mediators;

2. independence, impartiality and conflict of interest;

3. the mediation agreement and process as well as the role of the

mediator and parties’ counsel in mediation;

4. the execution and enforcement of a mediated settlement;

5. confidentiality, waiver and exceptions thereto as well as

consequences for breach thereof;

6. mediation fees, expenses and costs; and

7. sanctions and liabilities for misconduct

IV. CONCLUSION

Jesus and Socrates were two of the best negotiators of history. One is a form of
syllogism, the other in the form of parables
It seems that several factors are still needed before ADR can fully achieve its full
potential and become a success in the Philippine legal system of laws and jurisprudence.
Our Basic legal Ethics teacher always emphasized in us during our classroom discussions
that lawyers need not always settle disputes inside the courtroom, in front of an honourable
judge. The concept of ADR only proves that there a many paths in order to reach a single
destination.

‘Justice, justice, thou shalt pursue..’

- Deuteronomy 16:20