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MOOC, Mark Justin P.

Ll.B. 2B

TO THE RIGHT, TO THE RIGHT: OBSERVATIONS, CRITICISMS AND


RECOMMENDATIONS TO MEDIATION PROCEEDINGS

Mediation proceedings have been incorporated into our system of judicial recourse to unclog
court dockets, provide consensual and convenient alternatives for parties to resolve their disputes, and
preserve the relationships between parties.

This account contains my observations, criticisms and recommendations to the incorporation of


the mediation proceedings within our judicial system of dispute resolution. The observations, criticisms
and recommendations were culled from the afternoon of March 17, 2015. Four cases had undergone
mediation proceedings, with 3 of them to be continued at a later date to settle the terms and conditions of
the settlement, while the other one, unfortunately, had to be reverted back to the court for failure to
mediate.

At the beginning

The Mediator, before the proceedings began, simply had the parties sign a document, pointing to
them where to affix their signatures without explaining to them what the document is for. More so, the
Mediator should have explained to the parties what the mediation is for, what is seeks to attain, and how it
would benefit them. Unfortunately, the aforementioned had not been observed by the Mediator in all the
four cases heard that afternoon. He simply started the proceedings despite knowing that it was the first
time the parties met in the mediation.

Despite having failed to explain to the parties the purposes of mediation proceedings and the
document they had affixed their signature on, the Mediator, as what I had observed from his facial
expression and body language, was accommodating to the pleas of the parties. He simply allowed the
parties to discuss the matter and had butted in only after the parties were finished.

Mediators should take the backseat during the proceedings and allow the parties to take the
steering wheel. His main objective is to guide the parties as not to stray away from the path towards
amicable settlement. In one of the mediation proceedings held that afternoon, the Mediator simply guided
the parties in their course, despite the presence of their respective lawyers. He allowed the parties to talk,
and simply entered into the picture when the parties were arriving at a consensus.

However, mediators should first explain the purposes of the proceedings, the advantages of
amicably settling the dispute, and the documents the parties are made to sign. In all the four cases
scheduled that afternoon, the mediator was unable to do the above.

Lawyers in the mediation proceedings

In an ideal scenario of mediation proceedings, it should be the parties itself who should be present
in the mediation, and not the lawyer. Should the lawyer represent his/her client, the mediator requires that
a special power of attorney (SPA) should be presented. However, according to the PMC staff, this
requirement can be dispensed with. He furthered that in mediation proceedings, strict adherence to the
rules can be forgone especially with the end in view of amicably settling the dispute. For instance, in two
different proceedings I had observed, a lawyer having an SPA was allowed to represent his client in a
case, same with a lawyer in another proceeding who had no SPA to present. In their words, what matters
most in mediation proceedings is the willingness and enthusiasm of the lawyers to have the case finally
settled.

The presence of lawyers in the mediation proceedings at the PMC is a manifestation of our want
to safeguard our rights, more so, not to put us at a disadvantage. Furthermore, we tend to see lawyers at a
notch higher than us. Hence, the presentation of the SPA should be strictly observed in order to level the
playing field especially if the party himself attends the mediation proceedings without his lawyer.

But, this act of liberality on the presentation of the SPA can likewise save time and resources for
the parties should the lawyer forget to procure an SPA. Eventually, to balance things out, the mediator
should be very cautious in order not to put the other party at a disadvantage.

Scheduling and rescheduling

The mediator in cases during that afternoon was unable to specify what time in the day the parties
had to meet again, as their cases were set again for another day. The continuance of the mediation
proceedings are sought for should the parties are arriving into a consensus in the terms and conditions of
the settlement. As expressed by the staff after the mediations ended that afternoon, some parties would
arrive in the morning while the other arrived in the afternoon. This can be addressed with if the time was
specified by the mediator before they adjourn, despite a written notice given to them.