A SOURCEBOOK ON ALTERNATIVES

TO FORMAL DISPUTE RESOLUTION

MECHANISMS

A Publication of the
Justice Reform Initiatives Support Project
A SOURCEBOOK ON ALTERNATIVES TO
FORMAL DISPUTE RESOLUTION MECHANISMS

Copyright © 2008 by the National Judicial Institute

and the respective authors. All Rights Reserved.

No part of this publication may be reproduced, stored in a retrieval

system, or transmitted in any form or by any means, electronic,
mechanical, photocopying, recording or otherwise without the prior
permission in writing of the publisher.

ISBN - 978-971-91990-3-8

Cover and Book Design by Mr. Danvic Briones

Layout Design by Mr. Ronald V. Chungtuyco
Editing by Ms. Charina Ubarra

The publication of these materials was undertaken with the financial

support of the Government of Canada provided through the Canadian
International Development Agency (CIDA). This publication is part
of the Justice Reform Initiatives Support (JURIS) Project, a project
supported by CIDA through the National Judicial Institute of Canada.
The JURIS Project is being implemented in cooperation with the
Philippine Supreme Court, the Philippine Judicial Academy and the
Alternative Law Groups Inc. The article on Court Annexed
Mediation has benefited from work done under the auspices of The
Asia Foundation and the United States Agency for International
Development.
 Table Of Contents

PREFACE Hector Soliman xi

INTRODUCTION: Sustaining The Gains Of xv

The Juris Project In ADR
Andrew Ong

Impact Of The Barangay Justice System 1

On Decongesting Court Dockets And Broadening
Access To Justice: Looking Back And Forward
Alfredo Tadiar

Court-Annexed Mediation: 24
Summing Up The Past And Charting The Future
Carolyn A. Mercado And Damcelle S. Torres

The Lawyer’s Perspective On ADR 45

In The Courts And Its Implication On The Profession
Imelda Gidor

Judicial Dispute Jesolution (JDR) 59

As An Innovative Mode Of Dispute Resolution
Atty. Salvador S. Panga, Jr.

Rediscovering Olden Pathways And Vanishing Trails 91

To Justice And Peace: Indigenous Modes Of Dispute
Resolution And Indigenous Justice Systems
Maria Roda L Cisnero

Traversing Boundaries And The No-Man’s Land: 129

On Mediation, Gender, Rights And Justice
Eleanor Conda

About The Authors 159

Annex – Government Agencies With Mediation Programs 164

 PREFACE

The concept of “Alternative Dispute Resolution” or ADR is coming

of age in the Philippines, with the passage of the ADR Law, and the
introduction of mandatory court annexed mediation in the Philippine
Judiciary. Although mediation, conciliation, and arbitration are
usually referred to as variants of the practice of ADR, the term
“alternative” has been the subject of much discussion. Indeed, when
one considers the adversarial mode of conflict resolution, very much
institutionalized in the courts, then mediation truly offers a desirable
alternative to such a process. However, when one considers the
historic Filipino tradition of settling community disputes through
mediation along with the existing social practices of many
indigenous peoples in the country that utilize mediation through their
elders, then this modern day approach does not seem that modern at
all.

Be that as it may, the introduction of ADR in the judicial mainstream

is a very welcome development. The empirical studies conducted in
the technical studies of the Justice Reform Initiatives Support
(JURIS) Project reveals a lot of promise in the use of ADR to
promote access to justice, gender equality and court decongestion.
These studies also show the over-all satisfaction with ADR as a
means of resolving disputes. However, the program is not without its
challenges, at various fronts – organizational, conceptual,
philosophical, and operational.

And so, at the end of the five-year duration of the JURIS project, its
proponents have decided to put together a compilation of articles that
mirror both the triumph of the practice of ADR not only in the courts,
but also in the general field of dispute resolution. The articles also
reflect ADR’s inherent limitations, its shortcomings and continuing
concerns. This sourcebook offers a review of the practice of ADR and
seeks to determine ways to improve this endeavor.

The Introduction to this compilation was written by Atty. Andrew

Ong, a Court of Appeals Mediator and the Project Administrator of
the ADR Strengthening Component of the project. He orients the
reader on the process and factors that gave rise to the multi-
stakeholder approach to the installation of ADR, borne out of JURIS’
own experience with the project. He presents the importance of the
involvement of various stakeholders in the ADR process, including
judges, lawyers, mediators, and civil society, to ensuring the
xii

sustainability and continuity of the initiatives introduced by the

project.

The first article deals with the Barangay Justice System, the country’s
very own system of village level conciliation through village
officials. The article was written by the Chairperson of the ADR
Department of the Philippine Judicial Academy (PHILJA), and a
venerable icon in the field of ADR, Prof. Alfredo Tadiar. Barangay
Justice is discussed not as a stand alone method of resolving disputes,
but is correctly situated in the panoply of various mechanisms
existing in the field of ADR that help decongest the courts and
achieve better justice. The article provides a good framework
discussion on matters like court annexed mediation, judicial dispute
resolution, appeals court mediation, construction arbitration and
international arbitration, as well as the details of barangay justice.

The second article deals with court annexed mediation, and was
written by a lawyer colleague and friend, Atty. Carol Mercado, Senior
Program Officer and Atty. Damcelle Torres, Program Officer, both of
the Asia Foundation. The Asia Foundation has been highly
instrumental in supporting the mediation program of the Supreme
Court, and has had a lot of experience, both in the Philippines and
abroad, on ADR. Although the authors are quick to add that the
article does not reflect the official position of the foundation, it is
clear that the article benefits heavily from their experience. The
article provides a frank appraisal of the successes of court annexed
mediation, as well as the challenges and problems it continues to face,
like the low referral rate by judges. The article ends with a range of
options in the field that are worth examining, like Online Dispute
Resolution (ODR).

The third article deals with a very contentious area which is the
lawyers’ perspective on ADR in the courts, and its impact on the
profession. The article makes a strong pitch for the increased
involvement of the bar in ADR, not only arguing from a normative
point of view (the canons of professional ethics, decisions of the
Supreme Court, circulars on lawyer’s role in mediation) but also from
the practical view of delivering satisfactory justice, and earning one’s
professional fees. The article draws heavily from policy
pronouncements of no less than various Chief Justices, as well as
other issuances of the Court on the matter. The article was written by
Atty. Imelda Gidor, a prominent practitioner in Bacolod City and also
a mediation trainer for the JURIS Project.
 xiii

The fourth article tackles a very novel concept that has been
introduced by the JURIS Project, which is Judicial Dispute
Resolution (JDR). Essentially, this process involves the active
mediation and conciliation by judges of cases that have not been
settled during court annexed mediation. The core principle that
differentiates this process from other pre-trial processes is that the
JDR judge will not try the case, should mediation be unsuccessful, in
order to preserve the impartiality of the trial and the judgment
procedure. The article on JDR was written by Atty. Salvador Panga, a
well-known legal practitioner and advocate for ADR. His article was
culled from a technical study that he conducted on the efficacy,
efficiency and over-all satisfaction with JDR, using the experience of
Bacolod City, San Fernando Pampanga and Baguio City with this
practice.

The fifth article deals with a very appropriate topic, which mines the
wellsprings of our cultural roots, that is the interface of indigenous
dispute resolution mechanisms with the formal legal system.
Mainstream legal practice often blindsides this aspect of our tradition,
and the passage of the Indigenous Peoples’ Rights Act (IPRA) has
brought this important cultural and legal practice to the forefront. But
is the formal legal system designed to integrate indigenous values and
practices into the mainstream? Or even, is integration the proper
mode of interface at all? These are the questions which the author,
Atty. Roda Cisnero, attempts to answer. The article is part of a larger
research that the Indigenous Peoples’ Cluster of the Alternative Law
Groups has made on the matter, which will come out in monograph
form.

The final article of the series has been written by Atty. Eleanor
Conda, a former Executive Director of the Women’s Legal Bureau
and the Gender Adviser of the JURIS project. The article explores the
gender dimension of the ADR practice – how mediation has the
potential of both heightening the participation of women in the
process, or masking the power imbalances in favor of the men, in a
seemingly consensual but probably lopsided compromise agreement.
The article draws from the Gender Study of an ALG member,
WomenLEAD, and other studies commissioned under JURIS. The
author takes a fresh look at gender equality both from a human rights
perspective, as well as a practical approach on the justness and
fairness of mediation outcomes.

Through this publication, JURIS hopes to contribute to the literature

on ADR as it is being practiced in the Philippines. It is the
xiv

organization’s hope that serious students of ADR would learn from

the lessons that have been culled from the experiences presented in
these pages, based on more than fifteen years of installing,
implementing and evaluating ADR practice. This collection does not
pretend to be the last word in the practice of ADR in the Philippines,
nor does it cover all of the facets of the said practice. But, JURIS
certainly hopes that it does cover a significant slice of the experience,
so that it could serve as a platform for improvement and innovation in
the future.

For more information on court annexed mediation, judicial dispute

resolution and appeals court mediation, JURIS invites the readers to
log on to www.pmc.org.ph, the official website of the Philippine
Mediation Center of the Supreme Court, which is the organizational
expression for all ADR-related activities of the Supreme Court.

In closing, JURIS would like to thank the Canadian International

Development Agency (CIDA), more particularly the Head of Aid,
Mr. Tom Carroll, and our Senior Program Officer, Ms. Narcie Rivera,
for their continuous financial and moral support to JURIS. The
organization would also like to thank all the contributors to this
anthology, for without their insights and reflections, this collection
would not be possible. Finally, we would like to thank our graphic
designers, Mr. Danvic Briones and Mr. Ronald V. Chungtuyco, our
editor, Ms. Charina Ubarra, both professors at the De La Salle –
College of St. Benilde, who put together this book for all to see and
appreciate.

Atty. Hector D. Soliman

JURIS Local Project Director
June 9, 2008
 INTRODUCTION
Sustaining the Gains of the JURIS Project in ADR

Sustaining the Legacy

Even as early as the midterm of the project’s life, many of those who
were involved with, or knew about, the innovations of JURIS were
much concerned with ways to sustain the positive changes brought
about by JURIS, beyond the project’s life. In numerous meetings, the
question of sustainability was raised and discussed extensively, and
the agenda of finding ways to ensure the continuity of the JURIS
legacy increasingly became the hottest topic towards the end of the
project. The ending mantra of the project, it seemed, was “THINK
OF THE JURIS LEGACY.”

But how does one exactly ensure the continuity of something that is
still very new and is, in fact, experimental to a large extent?

Some even argued that the duration of the project was too short to
prove that the innovations were worth adopting into mainstream court
processes. Perhaps, this is true and sustainability does not necessarily
refer to immediately institutionalizing the innovations made. Rather,
it could simply refer to continuing the activities of the project in order
to accumulate more in-depth data and documentation of the results of
applying the innovations it has introduced. Whichever is desired or
expected, to institutionalize or simply to continue the innovations,
sustaining the legacy of JURIS was imperative. Things should not
stop just because the project ended.

With the termination of the project came the end of all financial and
organizational support from the donor institution. Without the
finances and the organization to run the activities, sooner or later, the
entire initiative will collapse. Thus, providing the finances to support
the activities of the project was immediately tackled, and this was
achieved through the establishment of a self-generating “mediation
fund” to replace the donor’s financial contributions. On the other
hand, a new organization was created to take over the management of
the project. After much debate, the structure of the new Philippine
Mediation Center took its final form.
xvi

Defining the JURIS strategy

However, beyond the financial and organizational needs of the

project, another factor was equally crucial to sustain the inroads that
were made towards the promotion of court-initiated mediation.
Fortunately, even before the discussions about sustainability started,
the project’s implementation design itself paved the way for
sustaining its initiatives. More specifically, the multi-stakeholder
strategy of the project is actually a formula that will help guarantee
the continuity of its undertakings. The rationale behind JURIS’ use of
such a strategy is best seen in the light of the realities prior to the
introduction of the project. Understanding how JURIS implemented
its mandate to innovate will bolster the thought that the legacy of
JURIS will continue.

JURIS entered the court-initiated mediation scenario in 2004 at a time

when the Supreme Court, through the Philippine Judicial Academy
(PHILJA), had already installed and operated several mediation
centers in the country and pilot-tested mediation at the Court of
Appeals, a few years back. Thus, JURIS had the benefit of learning
from the past experiences of all these mediation initiatives of the
Supreme Court.

The lessons learned by JURIS undoubtedly helped the project’s

management forge a multi-stakeholder strategy in installing
mediation in the model court sites. A multi-stakeholder approach
meant involving more than just private mediators in creating and
running the mediation centers. It also meant going beyond the
training and fielding of mediators to the courts. It was a strategy that
required the participation of all those who will be affected by the
change brought about by court-annexed mediation and whose actions,
in turn, will impact on the success or failure of the mediation
initiative. These persons included lawyers, judges, court personnel
and key public sectors in society.

As a result of the multi-stakeholder approach, the legal counsels of

parties-litigants are now welcomed and encouraged to take an active
part during the negotiations in the mediation proceedings. The judges
handling cases referred to mediation are also given the opportunity to
mediate or act as conciliators/mediators and neutral evaluators to help
parties-litigants and their lawyers negotiate settlements in mediation.
On the other hand, court personnel are put to task in monitoring
mediatable cases and ensuring that such cases undergo mediation
before proceeding to trial.
 xvii

Past experience showed that the lack of involvement of lawyers,

judges and court personnel resulted in greater resistance from these
sectors and had a significant negative impact on the mediation
initiative of the court. Judges did not refer cases to mediation.
Lawyers did not take mediation seriously and frequently advised
clients to refuse mediation. Court personnel complained of additional
work in dealing with mediation-related matters.

After obtaining feedback from these sectors, it was found that judges
did not see themselves as playing an integral role in the mediation
initiative. When the case is referred, the court’s interest in the case
ceased as effective control was transferred to the mediation center
personnel. Judges also did not know and understand the workings of
mediation. In fact, a number of judges did not believe in the efficacy
of mediation as, perhaps, they have not experienced conducting
mediation in their courts.

On the other hand, lawyers saw mediation as a threat to their

livelihood and considered mediators as “unfair competitors” to their
profession. Their presence in mediation was oftentimes unwelcome or
discouraged. As a reaction, many lawyers asked: “how can a non-
lawyer take control of their client’s cases?” Obviously, there was a lot
of mistrust and misgivings as lawyers were left out of the mediation
process. Also, court personnel did not appreciate the merits of
mediation. They felt their work was affected but they did not see the
benefits of the practice.

With all these problems cropping up in various degrees throughout

different mediation centers, the administrators and policy-makers in
charge of the court-annexed mediation initiative decided to try new
operating framework and strategy to improve the situation. Thus,
when JURIS was conceptualized, the idea of involving lawyers,
judges and court personnel in a more integral way made its inroad
into the project’s strategic plan. Initially, when the strategy was
formulated, the idea of having judges conduct the mediation with the
administrative support of court personnel, and lawyers appearing and
participating in the mediation process was met with objection and
suspicion by some. Such objection was understandable, if not
expected, because admittedly, the multi-stakeholder approach was a
most radical deviation from the existing paradigm and practice of
separating mediation from court processes.
xviii

It was perhaps, providential that JURIS was established through

PHILJA’s partnership with the Canadian government because the
mediation experience in Canada precisely fits the new approach of
the Supreme Court in involving lawyers, judges and court personnel.
With more than ten years of experience in court-annexed mediation,
the Canadian model had evolved to include judge-mediators and
lawyer-mediators. Canada also had its share of the problems with
lawyers in the early years of the introduction of mediation. Their
experience taught the Canadian courts to invite the bar association to
work with the courts on mediation. Thus, backed by the Canadian
experience, JURIS boldly embarked on the new and innovative multi-
stakeholder approach to mediation.

Meeting the Challenges to Implementation

The multi-stakeholder strategy, however, was an expensive and

elaborate approach. More time and effort was required, and a bigger
organization had to be in place to manage the whole initiative. As a
result, JURIS formed its own team to augment the existing
organization of PHILJA. The JURIS team comprised of middle
managers stationed at PHILJA and field personnel working in each
model court site. The mediation center in each of the model court
sites had at least four full-time project employees operating the
mediation center and serving as liaisons to the court and other
stakeholders.

On the other hand, the middle managers took care of planning,

implementing and monitoring the various activities in the “supply-
chain” of mediation. These activities include start-up steps such as:
1) the recruitment of mediators from different sectors; 2) the
orientation of judges, lawyers and court personnel; 3) the design of a
special mediation skills curriculum and mentoring facility; 4) the
recruitment and training of mediation staff; 5) the design and
construction of mediation centers; and 6) the actual conduct of skills-
training for judges and mediators which dovetailed with their
internship or on-the-job training.

The whole start-up process took almost a year to complete for the
first two model court sites. Each step was painstakingly planned. For
example, in recruiting mediators, an ideal profile with key
qualifications was formulated from the profiles of successful
mediators in existing mediation centers. Recruitment activities were
purposely spread out in various sectors of the society in order to
 xix

involve a wider community base. Consequently, the model court sites

had preachers, teachers, former judges, lawyers, businessmen, media
practitioners, military and peace officers, Barangay councilors and
other government officials, doctors, bankers and social workers,
serving as mediators. Each candidate was interviewed and carefully
screened so that expectations were aligned and responsibilities were
made clear before anyone was accepted for training and accreditation
as mediator.

Also, the design and implementation of the various training programs

was a huge and significant endeavor for JURIS. To engage the
different stakeholders, varied programs were designed for different
stakeholders. Judges were trained differently from the mediators,
while lawyers and court personnel had their own orientation program.
The different curricula were designed in collaboration with Canadian
trainers, and training materials coming from Canada had to be
modified and transformed into Philippine-based culturally-attuned
training aids. For the intensive skills training for judges and
mediators, the curricula was specially crafted to be an
“individualized” training program to allow each participant-trainee
the opportunity to engage in hands-on skills practice, both in the
classroom and in the real world.

Normally, in other training programs, not all participants were given

the time to practice their newly acquired skills. Only demonstrations
were done with a few volunteers from the trainees. However, in
JURIS, lectures and presentations were kept at the minimum while
skills-enhancing exercises were aplenty. Facilitators also
outnumbered the lecturers in JURIS training. More specifically, one
facilitator was assigned to every five or six participants-trainees, and
the facilitator was seated together with the trainees in order to attend
to their queries and concerns at any point in the training. Facilitators
were trained to coach the trainees and monitor the progress of their
skills from the start of the program up to the end of the training.
Learning was then immediately applied by the trainees in the
internship period that followed. Internship was regarded as an integral
part of the training and trainees were supported by mentors during
their first few mediation conferences.

Aside from the start-up activities, it was also essential that the model
courts were supported by capacity-building and efficiency-enhancing
measures. Activities such as periodic staff training, frequent
coordination meetings between and among stakeholders, constant
review of work processes, manualisation of standards, information
xx

and education campaigns, refresher courses and discussions on

mediation with mediators and judges, as well as other feedback
mechanisms were done to mirror back the performance of the
different protagonists. These measures then resulted in policy changes
and amendments in the rules governing the court-annexed mediation
practice, when necessary. In effect, a loop was created to link the
front liners, which comprised of the judges, lawyers, mediators and
court personnel, to the policy-makers at PHILJA; with the JURIS
team serving as the conduit to transmit information to and from the
two. With the loop, a continuous cycle of planning, implementing and
assessing initiatives was formed.

In hindsight, what the multi-stakeholder strategy has achieved

through the years was the creation of an organizational culture where
the innovations can thrive and continue beyond the project life. The
project stakeholders have become the bearers of this new culture and
the natural impetus to bring the innovations further, and for a longer
period beyond the project life. Now, perhaps, that is greatest legacy
of JURIS.

Atty. Andrew Ong

Project Administrator for the JURIS ADR Component
June 9, 2008
 IMPACT OF THE BARANGAY JUSTICE SYSTEM
ON DECONGESTING COURT DOCKETS
AND BROADENING ACCESS TO JUSTICE:
LOOKING BACK AND FORWARD

By

Alfredo F. Tadiar
Chair, ADR Department
Philippine Judicial Academy

Inevitability of conflict and dispute in society 1

In 1978, when work to establish a neighborhood justice system was begun, there were
about a little more than 40 million Filipinos living in the country. At the time of this
writing in 2007, in just one generation or less than 30 years later, population has
increased more than double to about 87 million. Except for some reclamation work
from the sea, there has been no appreciable increase in the Philippine Territory that was
established when Spain ceded the Philippines to the United States of America by the
Treaty of Paris at the beginning of the 20th Century for US$20 million or at a price of
about $1.00 for every Filipino then living.

The fact of an ever increasing population living in a finite territory, by itself, increases
interaction and the inevitability of conflict among them.2 Each one of the human
beings living in the country has basic needs to be met, desires to be fulfilled and
aspirations to be attained. Their varieties are infinite, ranging from the mundane urge
to secure the basic necessities of life, such as food, clothing and shelter, to the spiritual
desire to achieve heavenly bliss.

The unceasing pursuit to satisfy these needs and wants brings home the undeniable
basic condition of human existence, that is, that people live in an interdependent world.
For indeed it cannot be denied that, as the poet John Dunne says “The death of any man
diminishes me; for no man is an island, complete unto itself, each one is part of the
main. Therefore, ask not for whom the bell tolls. It also tolls for you”. No individual,
not even a family, can exist as a self-sufficient unit. They cannot, individually or
collectively, possibly grow, produce or manufacture everything they need even for

1
Much of the discussion made in this section are attributed to Hart and Sacks, The Legal
Process: Basic Problems in the Making and Applicatition of Law “Introductory Note on
the Principle of Institutional Settlement”, pp. 1 – 6. Handout in Harvard class, 1958.
2
Recognition that rapid population growth “hampers the struggle against hunger and
poverty” and delays achieving “adequate standards of living, including food, clothing,
housing, medical care, social security, education and social services, thereby impairing
the full realization of human rights” was made at the U.N.Conference on Human Rights
at Teheran, UN Doc. A/Conf. 32/41 (1968).
 Barangay Justice 3
mere survival. This fact of human interdependence is made even more self-evident in
the pursuit to satisfy wants and desires that go beyond mere existence, such as the thirst
for wealth and power, the desire for respect, and the need for love and companionship.
They all need the appropriate response from other human beings for satisfaction.
Differing priorities and abilities or power to satisfy the foregoing varied needs and
wants of individuals, inevitably produce conflict in such an interdependent human
relationship.

In sum, the conditions that make conflict in human society inevitable are: 1) increasing
population; 2) living in a fixed geographical territory; 3) having differing needs and
wants; 4) with greatly disparate priorities, capacities and power to satisfy those desires;
5) which can only be done with the voluntary or coerced cooperation of others.

Need to Create Order in Society

Without some sort of arrangement as to how members of society are to conduct

themselves in relation to each other, the weak will be downtrodden and oppressed
while the innocent and gullible will be taken advantage of, by the crafty. Valuable time
and energy that may be put to better use, is wasted in a self-help effort for individual
protection and avoidance of oppression and exploitation. Under such conditions, no
individual can realize his full potential; anarchy will prevail and society itself cannot
long endure.

In general, such substantive arrangements for societal living, seeks the safety and
security of the life, liberty and property of individuals. This is done by restricting the
free use of violence and deceit, and directing compliance with promises made. In
addition to prohibiting undesirable conduct, such societal arrangements also set forth
the kinds of affirmative conduct that are required of each community member as his
due contribution to the common interest and welfare. These are, among many others,
the payment of taxes that are necessary for the support of government or rendition of
military service.

In traditional societies, as in Pre-Hispanic Philippines, such substantive arrangements

are inferred from customary patterns of behavior that, in time, become respected
traditions.3 As society modernizes, such implied understanding or customs and
traditions are made explicit in provisions of statutes4 enacted by the legislature in
representation of the people or dictated by a ruler5 who may be benevolent or despotic.

3
For the relation of “Law and Custom”, see Chapter on said subject, Lloyd, The Idea of
Law (1970). See also, Fernandez, Custom Law in Pre-“Conquest Philippines (1976).
4
Written in “virtually indestructible” clay tablets that exist up to the present time, are the
laws of ancient Mesopotamia, ca. 3000 BC. “Law in Ancient Mesopotamia”, 27 Harvard
Law School Bulletin” No. 4, Summer, 1976.
5
Presidential Decrees issued by deposed President Marcos were treated as law.
 Barangay Justice 4
Modes of Social Ordering6

It is a point that need not be belabored that the various human relationship in society
must be brought into a workable and productive order if that society is not only to
survive, but to progress. Development, progress and the greatness of a nation depend
upon first attaining the basic pre-condition that is societal order.

At the macro or national level, legislative enactments directly seeking to resolve the
conflict between the landless and the landed sectors of society were done through the
Land Reform Act 7 and the Urban Land Reform Act 8, both of which are, up to this
writing, still being implemented. Another example is the Indigenous Peoples Rights
Act of 1997 (Republic Act No. 8371) which seeks to solve the claim of indigenous
peoples to their ancestral domain before they were displaced by the modern state.

At the micro or individual/personal level, negotiations to settle a dispute may result in

some contractual arrangement to govern the future relationship of the parties. A
collective bargaining agreement (CBA) between an employer and a labor union is a
good example of this mode of societal ordering. Lawyers who undertake to draft the
terms and conditions of such a contract, in effect, engage in what has been called
“private law-making”.9 This is indeed an accurate observation, for it is a well-known
legal doctrine that a “a contract is the law between the parties”. The contract aims to
govern the future relations of the parties by terms that are carefully worked out and
agreed upon for short or long term periods. This is another form of societal ordering at
the micro level.

Modes of Resolving Disputes

All kinds of disputes may be resolved under three general categories: the unilateral
mode, the bilateral mode and the third party intervention mode.

A. Unilateral Mode

As the term indicates, this is an action that is taken by one of the disputants without
regard to the wishes of the other party. This could take the form of fight, flight or
surrender, and forgiveness. At the micro level, the more aggressive party can take
some violent action against the other, to cow the latter into submission. At the macro
level, this could be like the decision of former President Estrada to wage war against
the Muslim separatists resulting in the capture of Camp Abubakar. Unfortunately, such
unilateral solutions only give rise to more problems.

6
“Social Ordering is a term used by Harvard Law Professor Lon Fuller in his article
“Mediation”, 44 Southern California Law Review, 305 (1971).
7
Presidential Decree No. 2 proclaimed the entire country as a land reform area effective
26 Sept. 1972.
8
P.D. 1517, 75 O.G., No. 1, p. 9.
9
Fuller, The Morality of Law,( Rev. Ed., 1971).
 Barangay Justice 5
Flight may be physical such as to run away from a fight or from a problem. Moving
away from a pesky neighbor and re-locating to a more peaceful neighborhood is a good
example. It could also be psychological flight. The latter is known as rationalization,
that is, reasoning that there is really no problem in the first place. This is illustrated in
Aesop’s fable about a fox that couldn’t reach a bunch of grapes and justifying its
decision to give up by saying to himself that he did not want he grapes anyway, as they
looked sour.

Surrender or giving in to the demand of the other side is the third type of response
under this unilateral category. Ill feelings arising from being exploited could lead to
exacerbation of the problem.

Another aspect of this response is to forgive whatever was done to the one extending
the act of forgiveness. This gives a good feeling of being generous and magnanimous.
At the national level, this could be in the form of a unilateral grant of amnesty by the
national government to rebels or tax evaders. On the other hand, the rebel grantees
skeptically view amnesty as a strategy of national government to unilaterally weaken
the rebel cause without waiting for the result of negotiations for peace which should
include a bilaterally agreed-upon amnesty. On the part of tax evaders, it is also viewed
as an effort to raise revenues in the guise of amnesty.

B. Bilateral Mode

This second mode means direct negotiations between the disputants to arrive at a
settlement of the dispute between the parties that could be mutually beneficial. The
result at the micro level is a compromise agreement 10. At the national level, the result
could be a peace pact to end a rebellion11. This could be the beneficial result of
bargaining on the basis of interest and principle, not on hard and fast position.

C. Third Party Intervention Mode

There are two forms for this mode, a facilitative intervention or an evaluative and
decisional one. The first kind may take the form of conciliation or mediation where a
neutral third party facilitates communication between the parties to analyze their true
interest. This has often been called assisted negotiations. At the international level, this
could take the form of a “good offices” intervention of a third nation which may host
talks between a national government and a rebellious faction of its society.12

10
The Civil Code defines a compromise as a contract, whereby the parties, by making
reciprocal concessions, prevent litigation from arising or put an end to one already
commenced.
11
Government has entered into separate peace agreements with the military rebels and
with the Moro National Liberation Front (MNLF). It is currently negotiating another
agreement with the Moro Islamic Liberation Front (MILF).
12
Indonesia hosted the successful peace negotiations between the Philippines and the
MNLF. Malaysia is currently hosting the peace talks going on between RP and the
MILF.
 Barangay Justice 6
The second kind of response under this third mode could be arbitration or judicial
resolution of disputes. In this case, the arbitrator or judge decides the dispute based on
relevant standards of law or contract. It is based on the evaluation of the evidence
presented by the parties and is thus classified as evaluative.

Distinctions between mediation and adjudication

While both methods involve processes for resolving disputes, they may be
distinguished from each other in the following significant respects:

Standards Mediation Adjudication

1. Product Compromise Judgment

Agreement

2. Maker of Parties Judge

Product themselves

3. Focus Person Act

4. Outlook Forward Backward

5. Process Flexible Rigid

6. Result Win-Win Win-Lose

 Barangay Justice

Each one of those distinctions shall be discussed separately, as follows:

The product of mediation is a compromise agreement while the product of adjudication is

a judgment. As defined by the Civil Code, “a compromise is a contract whereby the
parties, by making reciprocal concessions, avoid litigation or put an end to one already
commenced”.13

Although the judicial resolution of a dispute is often called a decision, there is a

distinction that may be drawn between the two terms - decision and judgment. While a
decision, such as to get married, may often be based on emotion like falling in love,
judgment is based on a rational evaluation of evidence bearing upon an issue that relates
to a relevant standard. Such standard distinguishes right from wrong, legal from illegal,
moral from immoral, or ethical from unethical. Judgment is a product of the mind and
emotion should not be allowed to becloud the rendition of a clear judgment.

A compromise that settles a dispute is the product of both parties agreeing on the terms
thereof. A judgment is the intellectual product of a judge or an arbitrator for deciding
which of the contending parties was right or wrong in doing what is charged.

The focus of litigation is the act or omission that is the subject of the complaint. It is thus
rightly called an “act-oriented process.” The lady symbol of justice is blindfolded to
represent the need to prevent justice from being swayed erroneously when one considers
the kind of person who committed the act charged. Thus, evidence of character14, such as
social rank, wealth or poverty, good or bad reputation, and the like, cannot be initially
introduced as they are considered prejudicial evidence. That means evidence that may
sway emotions and produce bias. After a judgment of conviction for the crime charged,
the sentencing stage now becomes a “person-oriented process” so that the penalty may
be tailor-suited to the particular person to be sentenced. This is the case with the
bifurcated trial of criminal cases under the American system. It is only after a verdict of
guilty that the blindfold is literally removed to allow the imposition of a penalty suitable
to the person of a convicted accused. Unfortunately, in Philippine criminal trials, a mix-
up has taken place whereby evidence of mitigating and aggravating circumstances are
considered together with evidence of guilt or innocence. It is like an accused saying “I
am innocent but if you find me guilty, please be lenient in imposing my punishment”.
This kind of trial has been criticized as more prone to a miscarriage of justice than a
bifurcated one.

In contrast, mediation is focused on the individual disputants and is therefore aptly called
a “person-oriented process”. Effort must be exerted to discern the values each party
holds, as well as their interests, needs, apprehensions and concerns. A good mediator,
armed with this knowledge, would then be able to effect a “trade-off of values” in order
to convince the parties to agree on a settlement.

13
Article 2028, Civil Code.
14
Section 51, Rule 130, Rules of Court.
 Barangay Justice
Since the focus of litigation is on the act, it must necessarily be “backward-looking”. This
is because the ultimate purpose of litigation is to punish a wrong that was committed.
While the purpose of punishment is plain enough in criminal prosecutions, it is less
obvious in civil cases. Nevertheless, when one prays for “punitive damages” or
“exemplary or corrective damages”15 which are prayed for in the interest of the public
good to deter others from doing what was charged, the punitive orientation of even civil
litigation becomes obvious.

Once an act has been committed, it becomes a past event. In criminal law, one can only
be punished for an “overt act” that constitutes part of a criminal attempt to commit a
crime. This is the earliest stage at which a crime may be punished. The idea that no one
may be charged, much more punished, for what he is merely intending to commit, is a
sound principle in the administration of criminal law in democratic countries.

On the other hand, mediation is “forward looking” in the sense that its efforts are directed
to reconciliation of the parties. The act charged is merely the starting point to mend the
relationship that was broken or impaired because of it.

By reason of the foregoing distinctions, the mediation process must necessarily be

informal, even friendly, casual and flexible. In contrast, the adjudicative process is
formal, rigid, distant and aloof. This is essential to show the seriousness of the process
that may result in the deprivation of property, liberty or even life itself.

The result of mediation may be a win-win agreement; that of litigation must always be a
win-lose decision. The judgment is a clear condemnation of a wrong or the exoneration
of innocence. It has been insightfully observed that society needs the black and white
judgment of litigation to keep alive its sense of right and wrong. Otherwise, the gray area
of a compromise may serve to dull it.

Conditions for reform

The ADR movement is a reform measure. For it to succeed, it must satisfy the two
conditions necessary for reform: first, there must be a grave dissatisfaction with
something in the present system; and second, a strong desire to change or to improve it.
These reasons served as basis for the Action Program for Judicial Reform that was
initiated by the Davide Court.

Dissatisfactions with the Judicial Adjudicative Mode

1. Interminable Delay

The formal method of resolving disputes of all kinds, whether between individuals or
between an individual or an institution, is entrusted to the judiciary. In the course of
time, this has been the most overstressed mode, resulting in the problem of court docket

15
Section 5, Articles 2229 to 2235, Civil Code.
 Barangay Justice
congestion arising from the “abuse, overuse and misuse of the courts”.16 This litigious
culture of society has overloaded the system beyond its capacity to handle. There are
about a million cases pending before the courts at all levels in the judicial hierarchy. This
has prompted the characterization of judicial resolution of disputes as “intergenerational
justice”17. This is used in a pejorative sense that is intended to convey the deplorable idea
that one cannot obtain justice in the courts within one’s own lifetime. This delay calls to
mind that legal doctrine that “justice delayed is justice denied.”

2. High Costs

The costs of judicial proceedings should be assessed not only in terms of financial
disbursements, although that is already considerable. Docket fees have considerably
increased to a hundredfold and even as much as 500% with the amendment of Rule 141
to raise revenue for the increase of salaries of judges. When hefty lawyer’s fees and
litigation expenses are added, there is reason to invoke the constitutional prohibition that
no one shall be denied access to the courts by reason of poverty.18

The expenditure of time for attending court trials, conferring with lawyers, looking for
witnesses and many others, must also be considered. Another aspect to factor in is the
travel time from home to the court location in the town’s centers of population called
poblaciones. The average time for a civil case to be disposed of is about four years. That
is the average. In the extreme, there are cases that have lasted for more than 30 years!

The emotional costs must also be taken into account. Somehow, being taken to court
means the end of any meaningful relationship between the parties. Even the mere sending
of a legal demand letter in this culture strains relationship to a breaking point. The scars
of litigation seem to last forever.

3. Popular incomprehensibility of judicial proceedings

Court proceedings are conducted in English, a foreign language that is poorly

comprehended by the general populace who are normally not comfortable with it. The
language barrier is compounded by the use of legal jargon that is understood only by
lawyers. A party’s narration of events, using his own words, are cut short by objections
of the opposing counsel demanding that the party only answer questions that are
propounded to him. An intimidating cross-examination that is designed to catch the
witness lying or to expose his poor recall is a terrifying experience for most witnesses,
even educated ones. This leads to popular frustration with judicial processes.

16
Remark attributed to the late Chief Justice Fred Ruiz Castro.
17
Intergeneration justice as applied to environmental law, positively recognizes the legal
personality of unborn children to sue in court to prevent the degradation of the
environment that they are meant to enjoy.
18
Section 11 , Article III, Bill of Rights, 1987 Philippine Constitution.
 Barangay Justice

4. Restricted access, ACID

Former Chief Justice Artemio Panganiban focuses on four problems of the judiciary that
he sought to address during his watch. He has code named these corrosive problems as
ACID. “A” stands for restricted ACCESS to the courts; “C” for CORRUPTION; “I”
for INCOMPETENCE; and “D” for DELAY in the delivery of quality justice19 in
judicial proceedings.

The problems of costs and popular incomprehensibility earlier discussed are factors that
severely restrict access to judicial justice. The problems of delay, costs and
incomprehensibilty were the concerns addressed in a positive way by the Katarungang
Pambarangay Law.

The problem of judicial corruption or what has been called by ousted President Estrada as
“hoodlums in robes” is sought to be minimized, if not eradicated, by better recruitment of
judges and more effective disciplinary actions.

The problem of incompetence is sought to be reduced by the training programs being

given to judges by the Philippine Judicial Academy (PHILJA). Former Chief Justice
Panganiban envisions, with the construction of a new PHILJA Development Center in
Tagaytay “to establish a special school for young lawyers who aspire to become career
judges”.20

5. Unsuitability of adjudication for minor disputes

The judicial process is outrightly punitive in the prosecution of criminal cases. But even
the pursuit of civil litigation is also punitive. This can easily be seen from the prayer
made by the plaintiff to be awarded punitive damages. The award of exemplary damages
which the plaintff also often prays for, “for the good of the public so that they may be
deterred from following the bad example given by the defendant”, is undoubtedly
punitive in nature.

The foregoing conclusion is inescapable because that is inherent in the judicial process.
The end product is a judgment that is made in relation to the legal right asserted and the
claimed failure to discharge the corresponding obligation to respect that right. This
entails upholding one party as the “winner” and the other as the “loser”. The imposition
of the appropriate penalty is the necessary consequence of such conclusion.

Many times, however, a complainant is not really interested in having the respondent
jailed or fined. This is true of many disputes involving close relatives, neighbors, friends
or others with whom the complainant has some kind of a relationship, such as that
between employer and employee. In these cases, the parties must continue with their
relationship notwithstanding the damage caused by the dispute. The parties must return to
live in the same neighborhood or to work in the same company. In these cases, the true
interest of the complainant is an opportunity to ventilate his grievance, explore the cause

19
Address by C.J. Panganiban, 30 Nov. 2006.
20
Ibid.
 Barangay Justice
of the problem, get an assurance that the offending conduct will no longer be repeated
and thereby restore the disrupted relationship.

The imposition of a penalty in the foregoing situations, damages the relationship between
the disputants beyond repair. The moral condemnation implied from the penalty
imposition entails a “loss of face”, a loss of pride and dignity that amor proprio, so
important to the Filipino, cannot accept. As a result, the rift between the disputants is
widened to a chasm that can no longer be bridged.

Approaches to solve court docket congestion

Several approaches have been taken for the solution of the grave problem o docket
congestion. Each approach is based on differing perceptions of the causes of the problem
or, at least, the factors that add to its complexity and gravity.

A. Direct Approach

The direct approach to reduce the clogged court dockets may be called “output-
oriented”. It is focused on increasing the judicial disposition rate of pending cases. It
involves making the judges more efficient in the performance of their function. Trainings
on case anaylsis, simplification of issues, more efficient pre-trial, case flow management,
decision writing and others, contribute to judicial efficiency. Specialization of courts in
distinct fields of law increases case disposition because an expert judge can decide a case
pertaining to his specialty much faster than a “generalist” judge. Filling up the many
vacancies in courts will speed up the disposition of cases that are dormant because of the
absence of a judge. Simplification of procedure will prevent a case from being stalled by
reason of problems connected therewith, and thereby allowing trial on the merits sooner.

Judicial efficiency is rated according to case disposal rate. A 100% efficiency that results
in zero backlog is reached when case disposal within a given period equals the number of
cases that are filed within the same period. The average disposal rate under this standard
is about 65%. This means that 35% more cases are added to the mountain of backlog
every year. The limits of judicial efficiency and human capacity have been reached
without making a dent on the backlog of cases. A new approach to solving the problem
has become necessary.

B. Indirect Approach

This approach would decrease the indiscriminate filing of cases in court. It is also called
the input-oriented approach.

a. Decriminalization of offenses

The proliferation of offenses based on violations of regulatory and sumptuary legislation

or ordinances may be seen as contributing heavily to the judicial workload. A logical
step is, therefore, to decriminalize these violations as not being real or true crimes. A
 Barangay Justice
step in the right direction is to allow the voluntary payment of fines for traffic violations
without court intervention. Administrative handling and not judicial processing would be
more efficient.

Another example could be the possible decriminalization of violations of the Bouncing

Checks Law that is now heavily clogging the dockets of first level courts. A step towards
this goal was taken when the Supreme Court issued a directive not to impose the prison
sentences that is imposable under B.P. 22. A worthy move that was not pursued for some
reason or another is to have this crime be made conciliable under the KB Law. The
advantage of this move would be to add a ground for the extinction of its criminal
liability in the event of a settlement. This is unlike the present situation where only the
civil liability is extinguished.

b. Prior conciliation of family disputes

Although perhaps not deliberately intended at the time of their adoption to decrease the
work load of judges, there are early efforts towards imposing a procedural bar to judicial
access of conciliable cases. One of them is the doctrine that mandates exhaustion of
administrative remedies before resorting to the courts. A second move was made in 1950
when the Civil Code of the Philippines was made effective. It included a provision that
requires the exertion of “earnest efforts” to settle the dispute among “members of the
same family”21. Unfortunately, this laudable effort suffered a setback through the
decision of the Supreme Court22 that held this provision to be inapplicable if an in-law
was involved in the dispute, as in-laws are not members of the same family. The author
criticized this holding as being culturally insensitive because it has turned cherished in-
laws into virtual outlaws.

c. The Katarungang Pambarangay Law

A revival of these earlier procedural screening devices was made in 1978 to weed out
workload cases from the court, that experience has shown, would eventually wash out by
extrajudicial settlement anyway.

The Presidential Commission created by President Marcos under P.D.1293 on 27 January

1978 was for the purpose of “studying the feasibility of instituting a system of resolving
disputes among family and barangay members at the barangay level, without recourse to
the courts”. The Commission, headed by Chief Justice Fred Ruiz Castro and six other
cabinet members, entrusted the actual task to a Technical Committee composed of the
representatives of the seven Commission members. The working group includes the
author, Professor Tadiar, who went on to become a key member not only in the
conceptualization but in the finalization of the law and its implementing rules. Instead of
just making a study and recommendation, however, the Technical Committee went on to
draft the law itself. The original design was expanded to include disputes not only
between family members and barangay residents, but also residents of the larger city or
town.

21
Article 222 , Civil Code, re-enacted into Article 150 of the Family Code.
22
Hontiveros v. RTC of Iloilo, Branch 25, June 29, 1999.
 Barangay Justice
On 11 June 1978, President Marcos signed into law P.D.1508, known as the
Katarungang Pambarangay Law. Then Chief Justice Fred Ruiz Castro predicted that
“P.D.1508 will play a role of historic proportions in the administration of justice”. It is
tragic that he did not live long enough to witness the fulfillment of his prediction.

Simply put, the KB law is a procedural bar against direct judicial recourse by the
disputants of the cases that it covers, except upon performance of a pre-condition, which
requires the personal confrontation of the parties and failure of earnest efforts to arrive at
a compromise agreement regarding their dispute.

C. Court Diversion of Pending Cases

While the indirect approach would lessen the caseload of the judiciary, as already
discussed, it does not affect the mountain of backlog of cases that are pending therein. A
complementary approach to address this problem thus became necessary.

a. Court-referred, Court-annexed Mediation

In 1991, with funding from The Asia Foundation, the U.P. Office of Legal Aid under the
direction of its Director, Professor Alfredo F. Tadiar, undertook a pilot project entitled
Court-Referral of Pending Cases to Mediation23. The purpose of the experiment was to
determine the feasibility of diverting pending court cases to outside mediation. The
experiment was conducted in a provincial area represented by San Fernando, La Union,
270 kilometers away from the other project site in Quezon City. The results of the study
show that the success rate of provincial cases settled at 31.14 % was higher than the
urban site at only 11.76%.

In 1999, after the establishment of the Philippine Judicial Academy in 1996, the idea of a
court-annexed mediation system was revived with the training of mediators from two
pilot sites, Mandaluyong and Valenzuela, both in Metro Manila. The training was
conducted in Subic, Olongapo City. With the successful results thereof, the Court-
Annexed Mediation (CAM) rapidly expanded to all regions in the country.

b. JDR Settlement – Pre-Trial Enhanced

This was an experiment that started in two pilot sites, one in Bacolod in the Visayas and
another in San Fernando, Pampanga. Funding assistance came from the Canadian
International Development Agency (CIDA). Essentially, mediation is conducted at two
levels: first at the CAM level, and if not successful, the pre-trial judge makes another
effort to settle the case, including neutral evaluation of the evidence. The innovation
introduced under this experimental project is that the judge-mediator is automatically
disqualified from trying the case and is required to turn it over to his pair judge or another
one chosen by raffle, for the actual trial of the case. The reason for this innovation is that
conciliation may have induced the parties to divulge confidential information to the
mediator-judge that may affect his neutrality, if he were to try the case. If JDR mediation

23
See Final Report, Pilot Project on Court Referral for Mediation, book bound, 127
pages, 1993.
 Barangay Justice
is unsuccessful, and the mediator-judge is allowed to conduct the trial of that case, his
integrity as a neutral and detached judge may be compromised since it is impossible for
him to compartmentalize his mind to exclude the privileged communication.

From the two initial project sites, JDR has expanded to include the entire province of
Negros Occidental and Pampanga. New project sites in Cagayan de Oro, Benguet and La
Union were also added.

c. Appeals Court Mediation

Again with funding assistance from the US AID, a pilot experiment was conducted in
2002 to determine the feasibility of expanding trial court mediation to the appellate level.
The three- month experiment showed that the cases settled were the equivalent of the
workload of an entire division of the Court of Appeals.

Because of the successful result, the Appeals Court Mediation (ACM) was
institutionalized with the training of a core of trainers, the recruitment and training of
mediators, and an internship program.

d. Diversion of construction disputes

Section 39, R.A. 9285, provides as follows:

Court to dismiss case involving a construction dispute.-

A Regional Trial Court before which a construction
dispute is filed shall, upon becoming aware, not later
than the pre-trial conference, that the parties had entered
into an arbitration agreement, dismiss the case and refer
the parties to arbitration to be conducted by the CIAC,
unless both parties, assisted by their respective counsel,
shall submit to the Regional Trial Court a written
agreement exclusively for the court, rather than the
CIAC to resolve the dispute.

It is further provided by the second paragraph of Section 35 of the same law that the
CIAC “shall continue to exercise original and exclusive jurisdiction over construction
disputes although the arbitration is ‘commercial’(as defined in Section 21 thereof) and
“notwithstanding the reference to a different arbitration institution or arbitral body in
such contract or submission.”24

e. Diversion of international commercial disputes

The passage of the ADR Act of 2004 (R.A.9285) gave impetus to the diversion of
pending court case to an outside forum. Construction disputes that are filed in court
despite an arbitration clause is authorized to be dismissed25 so that it could be referred to

24
Rule 4.1, CIAC Revised Rules of Procedures Governing Construction Arbitration,
November, 2005.
25
Sec. 34, R.A. 9285.
 Barangay Justice
arbitration before the CIAC. Similarly, it is mandated that international commercial
disputes are to be resolved by arbitration, using the Model Law of the United Nations
Commission on International Trade Law (UNCITRAL).

Advantages of settling under the KB Law

The dissatisfactions over judicial resolution of disputes that was earlier discussed are
each positively addressed by the Kararungang Pambarangay Law.

On the matter of heavy costs entailed by judicial processing, KB dispute processing is the
least expensive mode. A minimal filing fee of P20.00 is charged for filing a complaint.
Accessibility is assured by making dispute processing available in every barangay, thus
bringing justice literally to everyone’s doorstep. Travel time to a centralized location
becomes inconsequential. Conciliation could be agreed upon, and often takes place at a
venue or time most convenient to the parties and the mediator. Thus, time taken away
from work is minimized.

On the matter of popular incomprehensibility of judicial proceedings, KB dispute

processes are conducted in the vernacular or language understood by the parties. Parties
are encouraged to tell their side of the dispute freely and unencumbered by legalities. In
fact, it is important to stress that no lawyer is allowed to intervene in Barangay
conciliation proceedings, much less to make obstructive objections on procedural
grounds that would judicialize the dispute in the manner that lawyers are trained for.

On the matter of judicial delay, KB processing is restricted to thirty days, extendible to

another period of the same limited duration.

Finally, when the parties agree on the terms of their compromise agreement, the KB law
vests it with the force and effect of a court judgment. Thus, in the event of non-
compliance or violation of their agreement, the aggrieved party may move for
enforcement without having to go to court. This is one of the most significant innovations
introduced by the KB law whereby a contract is in effect converted into an enforceable
judgment of a court of law.

Standard to determine suitability of mediation or adjudication

After being convinced of the advantages of mediation over litigation, there is a danger
that parties would seek to settle all disputes by compromise agreements secured by that
mode. As defined by the Civil Code,26 compromise is made by “making reciprocal
concessions” to avoid litigation or put an end to one already commenced. This authorizes
a bargain where a diminution or waiver of rights is made by one party as a trade-off of a
return favor by the other. This results in the oft-used characterization of a “win-win”
agreement that is mutually beneficial to both parties.

26
Article 2028, Civil Code.
 Barangay Justice
The foregoing description of the process also infers the standard for determining the type
of disputes appropriate for mediation. And that is, a dispute that involves only the private
interests of the parties, since that is a situation where they are authorized by law to waive
their rights. The implication of this is that where public interest is involved in the
dispute, it is better left to the judicial mode for resolution. For instance, private
individuals should have no business compromising constitutional issues. A good
illustration of this divide is the case of a law student who sued his law professor for
starting his class with a prayer that ends with “in the name of Jesus Christ, our Lord,
Amen.” The plaintiff claims that this is a violation of the principle of Separation of
Church and State and the freedom of religion 27that are both constitutionally guaranteed.
This was particularly aggravated because the dispute occurred in a State University
subsidized by public funds. Thus, it was further argued that this violates the prohibition
against the establishment of religion made in the same constitutional provision. An offer
to compromise by persuading the teacher to cease the offending prayer was correctly
rejected on the ground that the plaintiff cannot waive the constitutional rights involved.
For the guidance of all, a black and white ruling by the judiciary is necessary.

• Essential Features of the KB Law

• In a nutshell, there are three essential features of the KB Law, namely, 1) it

provides for a conditional access to the formal adjudicative agencies of the
Government; 28 2) it is a bar against legal representation;29 and 3) the compromise
agreement or settlement under it is vested with the force of a judgment.30

• Under the law, no dispute covered by it may be filed directly in “court or any other
government office for adjudication unless there has been a confrontation of the parties
before the Lupon Chairman or the Pangkat and no conciliation or settlement has been
reached as certified by the lupon secretary or pangkat secretary as attested to by the lupon
chairman or pangkat chairman.” It is important to stress that the restriction against direct
recourse is not only with the courts but also before any adjudicative agency of the
government. Thus, a criminal complaint filed with the public prosecutor of a covered
case that has not undergone prior barangay conciliation, may be suspended or dismissed
until the condition has been met.

• The evidence showing compliance with the condition required is the Certificate to
File Action issued by the proper KB officials which is usually attached to the complaint.
Where a complaint is filed in court without undergoing the required KB conciliation, the
case may be dismissed “on the ground of lack of a cause of action or prematurity”31.

• The second feature of the KB Law is that representation of a party, particularly by a

lawyer, is prohibited. Section 415 of the Local Government Code provides as follows:

27
Article III, Section 5, 1987 Philippine Constitution.
28
Section 412, R.A. 7169, Local Government Code.
29
Section 415, ibid.
30
Section 416, ibid.
31
Royales v. Intermediate Appellate Court, G.R. No. 65072, January 31, 1984.
 Barangay Justice
• Section 415. Appearance of parties in person.- In all katarungang pambarangay
proceedings, the parties must appear in person without the assistance of counsel or
representative, except for minors and incompetents who may be assisted by their next-of-
kin who are not lawyers.

• There is no other law that appears so outrightly discriminatory against lawyers than
the above-quoted statutory provision. A minor who is a party to a dispute may not even
be represented by his own parent if either of them happens to be lawyer! Surprisingly, the
legal profession has not posed any challenge at all to this questionable provision.
•
• The third feature is that a successful mediation resulting in a compromise
agreement is given the force and effect of a judgment of a court of law. This means that
the terms of settlement can be executed or enforced like any court judgment.
• Section 417 of the law provides as follows:

• “Execution.- The amicable settlement or arbitration award may be enforced by

execution by the lupon within six (6) months from the date of the settlement. After the
lapse of such time, the settlement may be enforced by action in the appropriate city or
municipal court.”

• Under the original law, the power of execution was denied to the barangay officials
because of a perceived danger of abuse. Congress became convinced that said power
could be safely entrusted to them after about a dozen years of experience.

How the KB Law operates

a. Conditions for applicability

For the KB Law to be applicable, the following conditions must exist: 1) the dispute is
between natural persons;32 2) the disputants must live in the same city or town;33 and 3)
the dispute is not among those expressly excluded by the law.34

Since the law was designed for the resolution of interpersonal disputes, it excludes
disputes involving corporations, partnerships and other artificial persons. This avoids
problems related to sufficiency of authority to represent their principal. Further, the law
requires the personal appearance of the disputants themselves so that the decision to settle
can be effectively implemented. Thus, no representation of a party is allowed except for a
minor who may be represented by his next of kin who is not a lawyer.

The second condition is often erroneously interpreted as restricting KB application to the

territorial limits of the barangay. Perhaps, the confusion is foisted by the title of the law
and the original intent stated in the decree which was expanded to include residents of an
entire city or town.

32
Section 410, id.
33
Section, id.
34
Section 408, ibid.
 Barangay Justice
The third condition arose from the decision of the Technical Working Committee to vest
jurisdiction not by enumerating the kinds of disputes that may be settled but including all
kinds of disputes except those that are enumerated.

b. Subject matter jurisdiction

There are three (3) general categories of disputes that require resolution: 1) civil disputes;
2) criminal cases; and 3) administrative cases. Under the first category, there is no limit
to the amount involved in order that the KB law may be invoked. A popular
misconception arising from a provision in the original law vesting jurisdiction to issue a
writ of execution upon the first level courts, is that the jurisdiction involved in KB
disputes of civil cases is similarly limited to the jurisdictional amount for courts of the
first level. A clarification made it clear that jurisdiction in civil cases is unlimited as to
amount. The reason for such broad grant of jurisdiction is that one case settled is one less
case that will reach the courts.

For criminal cases, the penalty provided for by law must not exceed imprisonment of one
year or a fine of not more P5,000.00, or both such penalties. The reason for this
restricted jurisdiction is that the higher interest of societal security must prevail over the
private interests of the individual. To allow the compromise of more serious crimes
would detract from the effective operation of the deterrent principle which is the
cornerstone of societal security.

For administrative disputes that involve the performance of official functions of a

government official, the law provides that the KB system has no jurisdiction. It is thus
important to distinguish whether the act complained of against a public official was done
in relation to the performance of his official duties or in his capacity as an ordinary
citizen. The reason for this provision is that the development of a committed public
service through effective disciplinary sanctions must override considerations of the
convenience of the individual. A compromise would detract from this laudable objective.

c. Venue

There are four (4) alternative venues35 for filing a complaint under the KB Law.

a) If both disputants are residents of the same barangay, the complaint shall be
filed with Lupon of said barangay;
b) If the parties reside in different barangays within the same city or town, it
shall be filed in the barangay where the respondent or any of them resides, at
the choice of the Complainant;
c) If the dispute involves real property, it shall be filed in the barangay where
the property is situated or where the greater portion thereof lies.
d) If the dispute arose in the workplace where both parties are employed, it shall
be filed in the barangay where such workplace is located.

35
Section 409, Local Government Code.
 Barangay Justice
e) If the dispute arose in an institution where both parties are enrolled for study,
it shall be filed in the barangay where such institution is located.

The principal reason for the venue is that the Barangay Captain may be able to
exert his influence more effectively to effect a settlement.

d. Procedure for settlement

Complaints are required to be filed in the proper barangay as stated above.

The Barangay Captain is the principal mediator under the KB system. As soon as the
complaint is filed, he is required to “summon the Respondent and his witnesses to
appear before him for mediation of their conflicting interests.”36 If he fails to settle the
dispute, he is mandated to constitute the Pangkat ng Tagapagkasundo,37 a panel of
three conciliators which must make a second try to secure a compromise settlement of
the dispute. The Pangkat is given fifteen (15) days from the date it convenes,
extendible for a similar period, to persuade the parties to settle their differences 38.

It is only upon failure of this two-step conciliation process that a Certificate to File
Action before the proper court is issued by the Pangkat Secretary and attested by the
Pangkat Chair.

e.Sanctions

The original law contains a provision on sanctions39 that would impose the penalty “as
for indirect contempt of court upon proper application” therefor by the concerned KB
official. Further, if it is the complainant who refuses or willfully fails to appear in
compliance with the summons issued, the complaint shall be dismissed and this fact
shall be reflected in the records and in the minutes so as to “bar the complainant from
seeking judicial recourse for the same cause of action”. On the other hand, if it is the
respondent who is at fault, he shall be barred “from filing any counterclaim arising out
of or necessarily connected therewith.”

f. Arbitration

The KB Law provides as follows:

Sec. 413. Arbitration.- a). The parties may, at any stage of the
proceedings, agree in writing that they shall abide by the
arbitration award of the lupon chairman or the pangkat.

36
Section 410 (a), Local Government Code.
37
Sec. 410 (b), ibid.
38
Sec. 410 (e) ibid.
39
Section 4 (d), P.D. 1508
 Barangay Justice
Theoretically, the parties could appoint the Punong Barangay as the Sole Arbitrator or
the Pangkat as the Panel of Arbitrators. In practice, this mode is rarely resorted to,
perhaps because it is hardly suggested to the parties as an available alternative in either
of these two stages. In a research study that the author conducted40, the reason for this
is that the arbitrational mode is not well understood. Further, the training of KB
officials has been focused on the mediation mode with hardly any attention being paid
to the arbitrational mode. Thus, the officials are not comfortable with the evaluation of
evidence that are submitted to them as basis for making a decision or an arbitral award.

g. Repudiation

There are two kinds of repudiation that are available to an aggrieved party under the
KB Law. The first is the repudiation of the arbitration agreement that the parties may
have agreed upon which must be done “within five (5) days from the date thereof”. It is
important to note that there is no remedy of repudiation of an arbitral award. The
proper remedy is “a petition to nullify the award filed before the proper city or
municipal trial court”.41

The other kind is the repudiation of the compromise agreement that may have been
secured. It must be filed by the aggrieved party “within ten (10) days from the date of
the settlement” in the form of a written statement that must be sworn to before the
Lupon Chairman on the ground his consent thereto was “vitiated by fraud, violence or
intimidation”42. The ground for repudiation of the arbitration agreement is the same.

h. Enforcement of settlement or award

The KB Law provides as follows:

Sec. 417. Execution.- The amicable settlement or arbitration award

may be enforced by execution by the lupon within six (6) months
from the date of settlement. After the lapse of such time, the
settlement may be enforced by action in the appropriate city or
municipal court.

40
“Research Survey on the Conciliation of Disputes under the KB Law”, book bound
mimeo, 215 pages, 1984, UP Law Center.
41
Section 416, Local Government Code.
42
Section 418, Local Government Code.
 Barangay Justice
Conclusion

Statistics from the Bureau of Local Government Supervision (BILGS) show that in the
two decades and a half that the KB system has been operating since 1980, a cumulative
total of 4,052,000 cases have been settled, which, it is concluded, would have been
otherwise filed in the judicial system. Based on the average amount of P9,500.00 that is
estimated to cost the government for each of those cases, the barangay justice system has
saved the government the staggering sum of P24,663,435,660.00. The estimated cost per
case resolved is computed by adding the operating budget of the court for a year and
dividing it by the number of cases resolved during that year. Actually, the cost would be
much greater if the capital outlay costs (building the Halls of Justice, for instance) were
added. By lessening the workload of judges through preventing the filing of cases that
would have been resolved judicially, the KB system has undoubtedly contributed to a
great degree in lessening court docket congestion.

As to other objective of the KB system of broadening access to justice, referring to an

empirical study that this author conducted in San Fernando, La Union, with funding
assistance from The Asia Foundation, the conclusion was reached that the respondents
surveyed placed great value on the KB system for having empowered them to resolve
their own disputes. This has now been enshrined as a State Policy in the ADR Act of
2004 (R.A.No. 9285) when it explicitly expressed it as a state policy to respect party
autonomy or the freedom of the parties to make their own arrangement to resolve their
own disputes 43.

43
Section 2, R.A. 9285.
 COURT-ANNEXED MEDIATION: SUMMING UP THE PAST
AND CHARTING THE FUTURE

Carolyn A. Mercado and Damcelle S. Torres ∗

Mieux vaut un mauvais accord qu'un bon proces.("Better a poor

agreement than a good trial.")
Georges Bernard, lawyer, Paris Law Court

The hot button issue in the justice reform movement today is

Alternative Dispute Resolution (ADR). Throughout the world, ADR
processes are making an enormous contribution to resolving disputes
both in and out of the court system. Private ADR processes are
mushrooming and ADR has become a profession for many. Courts
have adopted these processes too, and have offered these ADR
processes either mandatorily or voluntarily to party litigants. Heavy
reliance on traditional and adversarial processes is now being
minimized. Getting disputes resolved in less contentious and more
consensual ways is becoming the norm.

The Philippine Judiciary is not lost in this global development. With

a backlog of more than 800,000 cases and the threat of docket
explosion, the Supreme Court searched for ways to promulgate a
simplified and inexpensive procedure for the speedy disposition of
cases in all courts. In 1999, along with relevant stakeholders and
with support from international donor agencies 1 , the Supreme Court
formally introduced Court-Annexed Mediation (CAM) to the
Philippine Judicial system. 2

Brief History

It all started with a pilot test of CAM in the first- and second-level
courts of Mandaluyong and Valenzuela cities from December 1999 to
February 2000, pursuant to A.O. 99-1-01 SC and implemented by the
Philippine Judicial Academy (PhilJA). The pilot posted a modest
settlement rate of 40% 3 . To bolster this experiment, PhilJA
∗
The thoughts expressed in this article are the authors’ alone and do not necessarily reflect any policies
or positions of The Asia Foundation or the United States Agency for International Development.
1
Particularly, the United States Agency for International Development and The Asia Foundation.
2
Previous experiments in Court-Annexed Mediation (then called Court-Referred Mediation) were
conducted in 1991 by the Supreme Court and the University of the Philippines College of Law. First-
and second-level courts in San Fernando, La Union and Quezon City participated in the pilot project.
Eight mediators were employed with 236 cases actually referred for settlement. Of these, 71 cases were
successfully settled, 157 were returned to the courts, and eight cases were dismissed after the initial
conference.
3
Out of 103 cases referred for mediation, 67 cases were actually mediated, of which 27 were settled.
 Court-Annexed Mediation 25

conducted two more pilot tests – one in selected cities in Metro

Manila from July to September 2000, and another in Cebu and Davao
from October 2000 to April 2001. The success rate this time
increased to a staggering 87%.

The success of the second pilot test was due to a system of referral
devised by PhilJA, thus resulting in the mediation of more cases.
Further, a pool of mediators was systematically trained and judges
and court personnel were simultaneously equipped with skills
necessary for the implementation of CAM. PhilJA also created an
Alternative Dispute Resolution Sub-Committee (later converted into a
full Committee), which was instrumental in the promotion, planning,
supervision, and ultimate institutionalization of CAM. Moreover, the
promise of CAM led the Supreme Court to issue en banc Resolution
A.M. 01-10-5-SC-PHILJA dated October 16, 2001, which provided
for initial measures in the implementation of CAM.

First, it established the Philippine Mediation Center (PMC), an office

whose objective was to set up PMC units in courthouses in the 13
judicial regions nationwide. PhilJA was designated as the Supreme
Court’s component unit for CAM and other alternative dispute
resolution (ADR) mechanisms, and was directed to manage the PMC
and its units.

Second, the Supreme Court approved the Second Revised Guidelines

in the Implementation of Mediation Proceedings, which identified the
following cases that can be referred for mediation:
(1) All civil cases, settlement of estates, and cases covered by the
Rule on Summary Procedure, except those which, by law,
may not be compromised;
(2) Cases cognizable by the Lupong Tagapamayapa under the
Katarungang Pambarangay Law (Barangay Justice System);
(3) Civil aspect of B.P. 22 (Bouncing Checks Law) cases; and
(4) Civil aspect of quasi-offenses under Title 14 of the Revised
Penal Code. 4

Third, Standards and Procedure for Accreditation of Mediators and

Code of Ethical Standards for Mediators were also issued to ensure
the quality and competency of mediators. Under the standards and
procedure, a mediator must, among others, be a college graduate, at
least 30 years old, trained in mediation and accredited by the
Supreme Court. The same resolution also provided for Compensation

4
Revised Guidelines on Mediation, A.M. 01-10-5-SC-PHILJA, October 16, 2001.
26 Court-Annexed Mediation

Guidelines for Mediators and Supervisors, which was later

superseded by the Revised Rule 141 on Legal Fees. 5

The Supreme Court continued its support for CAM by mandating the
monthly inventory and referral of cases for mediation through A.C.
No. 02-2002 dated April 2, 2002.

Court of Appeals

Recognizing the potential of CAM for docket decongestion, the

Supreme Court expanded CAM to the Court of Appeals through a
pilot test by the end of 2002. 6 The two-month pilot test yielded a 67
percent success rate. The Appellate Court Mediation Project moved
to its second phase in 2005. The second phase focused on the
internship of newly-trained Court of Appeals mediators and led to the
issuance of the Proposed Revised Guidelines for the Implementation
of Mediation in the Court of Appeals. 7 Under the guidelines, cases
that can be mediated in the Court of Appeals are:
(1) Civil cases brought on ordinary appeal or petition for review;
(2) Appeals from final orders, awards, judgments, resolution of
quasi-judicial agencies in the exercise of their quasi-judicial
functions through petition for review or certiorari;
(3) Special civil actions for certiorari, except those involving pure
questions of law;
(4) Habeas corpus cases involving custody of minors, with the
consent of the parties, provided that the minor is not detained
for the commission of a criminal offense; and
(5) Criminal cases cognizable by the Katarungang Pambarangay,
under Republic Act No. 7160, involving offenses punishable
by imprisonment not exceeding one year or a fine not
exceeding P5,000.00.

The guidelines also laid down the qualifications of mediators in the

Court of Appeals. They are limited to retired justices and judges,
senior members of the bar and senior law professors who are trained
and accredited by the Supreme Court.

5
A.M. No. 4-2-04-SC, July 20, 2004.
6
A.M. No. 02-2-17-SC, April 16, 2002. The United States Agency for International Development
(through its AGILE project and later on, through The Asia Foundation) also funded the Appellate Court
Mediation.
7
Resolution No. 04-04 as cited in “Mediation – An on-going concern in CA” by Atty. Marie Claire
Victoria Mabutas-Sordan,
http://ca.supremecourt.gov.ph/index.php?action=mnuactual_contents&ap=mediation (last visited on
April 28, 2008).
 Court-Annexed Mediation 27

Milestones

Direction is more important than speed. We are so busy looking at

our speedometers that we forget the milestone.
Anonymous

In 2004, five years after the pilot test of CAM, an evaluation was
conducted by the Social Weather Stations in the three pilot areas -
National Capital Region, and the cities of Cebu and Davao. Judges,
court personnel, mediators, lawyers and litigants whose cases
underwent mediation participated in the survey. Survey results
revealed that 71% of the lawyers and 62% of the litigants who
participated in CAM satisfactorily settled their cases. In addition,
96% of the respondents expressed interest in mediation as an
alternative, cost-efficient means of resolving disputes. 8

In the same year, the Canadian International Development Agency

(CIDA) initiated the Judicial Reforms Initiatives Support (JURIS)
Project, which included CAM as a component. Under JURIS, PMC
units were established in Bacolod City and San Fernando, Pampanga
by mid-2004 and in the provinces of Benguet and La Union in 2006.
More PMC units were established in Negros Occidental thereafter.

Mediation Fee

Establishment of PMC units was primarily funded by foreign donors

such as USAID, The Asia Foundation, and CIDA. But starting
August 2004, the operation of existing PMC units and the creation of
additional ones have also been supported by the Mediation Fund, a
special fund created by the Supreme Court to ensure the sustainability
of the CAM program. 9 Amending Rule 141 of the Rules of Court on
legal fees, the Supreme Court mandated the collection of mediation
fees in the amount of P500.00 in regular courts. The collected amount
forms part of the Mediation Fund which PhilJA manages for use in
training seminars, workshops, and internship programs for mediators,
payment of mediators’ fees and the PMC Unit Supervisor, advocacy
and promotion of court-annexed mediation, and other relevant modes
of ADR. 10 Nowadays, the expansion of PMC units is funded through
the Mediation Fund.

8
Evaluation of Court-Annexed Mediation by Stakeholders, Report on a Survey Project for the Philippine
Judicial Academy sponsored by The Asia Foundation, with funding support from USAID, July 23, 2004.
9
A.M. No. 04-02-02 SC, July 20, 2004, effective August 16, 2004.
10
Ibid.
28 Court-Annexed Mediation

To ensure the proper collection and use of mediation fees, the

Supreme Court issued various resolutions providing for:
(1) Implementing Guidelines for the Utilization and
Disbursement of the Mediation Fund Provided for in Section
9 of the Revised Rule 141 of the Rules of Court on Legal
Fees; 11
(2) Guidelines for Collecting Fees for the Mediation Fund Under
Section 9, Rule 141 (A.M. No. 4-2-04-SC effective August
16, 2004) and A.M. No. 01-10-5-SC-PHILJA dated October
16, 2001; 12 and
(3) Collection of Mediation Fees and Payment of Mediator’s
Fees. 13

131 PMC Units

Starting in 2005, the PMC opened 37 new units in the trial courts of
La Union, Cagayan, Bulacan, Batangas, Bicol, Cebu, Zamboanga del
Sur, Misamis Oriental, Lanao del Sur, and Rizal using the PMC
Fund. To date, a total of 131 PMC units 14 have been established in
13 judicial regions throughout the country, specifically in areas with
significant caseloads. This includes three units established in Taytay
and Antipolo, Rizal, and in San Jose del Monte, Bulacan through
Mobile Court-Annexed Mediation; i.e. Supreme Court buses serving
as mediation centers.

11
A.M. No. 05-3-25-SC-PHILJA, April 25, 2005.
12
A.M. No. 05-3-13-SC-PHILJA, July 5, 2005.
13
A.M. No. 04-8-12-SC, July 19, 2005.
14
54 units funded under TAF; 40 units funded by JURIS; and 37 units funded by the PMC Fund.
 Court-Annexed Mediation 29

Judicial PMC Units Funding

Region
NCR 18 units in Metro Manila 15 TAF
Region I 10 units in La Union and Mediation Fund/JURIS
Benguet 16
Region II 1 unit in Cagayan 17 Mediation Fund
Region III 18 units in Pampanga and Mediation Fund/JURIS
Bulacan 18
Region IV 7 units in Batangas and Mediation Fund
Rizal 19
Region V 6 units in Bicol 20 Mediation Fund
Region VI 22 units in Negros JURIS
Occidental 21
Region VII 9 units in Cebu 22 TAF/Mediation Fund
Region VIII 17 units in Leyte 23 TAF
Region IX 1 unit in Zamboanga del Sur 24 Mediation Fund
Region X 4 units in Misamis Oriental 25 TAF /Mediation Fund
Region XI 15 units in Davao and South TAF
Cotabato 26
Region XII 3 units in Lanao del Sur 27 PMC Fund

PhilJA’s experience has shown that local stakeholders (e.g. local

government, Chamber of Commerce) play a crucial role in the
establishment and operation of PMC units. In Leyte, for instance,
PMC units were established through support from the
Congresswoman and Governor who allocated funds for the
construction of the PMC Building.

15
Caloocan, Las Pinas, Makati, Malabon, Mandaluyong, Manila, Marikina, Muntinlupa, Navotas,
Paranaque, Pasay, Pasig, Pateros, Quezon City, San Juan, Taguig, Valenzuela, and an Appellate Court
Mediation Center in Manila.
16
PMC Fund: San Fernando, Agoo, Aringay, Bacnotan, Balaoan, Bauang, Naguilian, and San Juan in La
Union; JURIS: Benguet and Baguio in Benguet Province.
17
Tuguegarao City
18
JURIS: San Fernando City, Angeles, Clark, Mabalacat, Porac, Apalit, Arayat, Bacolor, Floridablanca,
Guagua, Lubao, Mexico, Macabebe, Sta. Ana, Sta. Rita, and Sto. Tomas; PMC Fund: Malolos and one
Mobile Court-Annexed Mediation unit in San Jose del Monte, Bulacan.
19
Batangas City, Lipa, Lemery, Rosario, Tanauan in Batangas; and Mobile Court Annexed-Mediation
units in Taytay and Antipolo, Rizal.
20
Naga, Pili, Calabangga, San Jose, Iriga, Ligmanan.
21
Bacolod City, Bago City , Binalbagan, Cadiz City, Calatrava, Cauayan, EB Magallona, Escalante City,
Himamaylan City, Hinigaran, Ilog, Isabela, Kabankalan, La Carlota, La Castellana, Murcia, Pontevedra,
Sagay City, San Carlos City, Silay City, Sipalay, and Villadolid.
22
TAF: Cebu City, Mandaue City, Lapu-lapu City; PMC Fund: Talisay City, Naga, Carcar, Minglanilla,
Argao City, and Toledo City.
23
Tacloban, Abuyog, Alangalang, Basey Samar, Carigara, Dagami, Dulag, Jaro, Burauen, Capoocan,
Palo, Tanauan, Tolosa, Naval, Baybay, Ormoc, and Hilongos.
24
Zamboanga City
25
TAF: Cagayan de Oro; PMF Fund: Misamis Oriental, Bukidnon, and Camiguin.
26
Davao City, Digos City, Panabo City, and Tagum City in Davao; and General Santos, Maasim,
Saranggani, Polomolok, Koronadal, Tupi, Tampakan, Surallah, Banga-South Cotabato, Norala-South
Cotabato, and Tantangan-South Cotabato.
27
Iligan City, Ozamiz City, Marawi City.
30 Court-Annexed Mediation

The CAM program is now backed by 697 mediators trained and

accredited to conduct mediation proceedings in trial courts and the
Court of Appeals. To maintain the accreditation, continuous training
in mediation is required. Accreditation of trial court mediators is
renewed every two years, 28 while accreditation of Court of Appeals
mediators expires every five years. 29

Success rate

Efforts at promoting the institutionalization of CAM have not been in

vain. Despite a slight decrease in the number of cases referred for
mediation from 2005 to 2006, 30 the number of referred cases shot up
again in 2007. 31 Further, the number of cases that were actually and
successfully mediated has been increasing each year, with most of the
successfully mediated cases resolved after one or two sessions only. 32
CAM presently boasts of a 72 percent success rate for 2007,33 placing
the over-all success rate from 2002 to 2007 at 71 percent. 34

Interestingly, the caseload of trial courts for the past eight years
follows a downward trend. Although the decrease in caseload cannot
solely be attributed to CAM, the program can be credited for the
36,155 35 cases cleared from court dockets through mediation,
contributing to the drop from 814,033 pending cases in 2002 to the
703,004 judiciary caseload in 2007. 36 It can therefore be deduced that
out of the 111,029 caseload drop in the judiciary from 2002 to 2007,
33 percent were resolved through CAM. This figure is even
considered a conservative count since in mediation, separate but
related cases or counts (e.g. three counts of violation of B.P. 22 or the
Bouncing Checks Law) 37 are mediated together, and one settlement

28
A.M. No. 01-10-5-SC-PHILJA, October 16, 2001.
29
A.M .No. 4-3-15-SC-PHILJA, September 26, 2006.
30
In 2005, 25,745 cases were referred for mediation while in 2006, 21,210 cases were referred for
mediation.
31
34,370 were referred in 2007, the biggest number so far since 2002.
32
Dean de los Angeles’ presentation on Court-Annexed Mediation during the National Conference on
Court-Annexed/Referred Mediation in November 2006 (hereafter referred to as “Dean De Los Angeles’
Court-Annexed Mediation Lecture”).
33
Out of the total 16,990 cases actually mediated, 12,199 were successfully settled, bringing the success
rate to 72 percent.
34
Out of the total 50,660 cases actually mediated from 2002 to 2007, 36,155 were successfully mediated.
35
This includes 2007 data.
36
Summary Report of Cases for Years 2002-2007, Statistical Reports Division, Court Management
Office, Office of the Court Administrator, May 6, 2008. Caseload for 2007 excludes cases from the
Supreme Court and new cases from the Court of Appeals.
37
In Philippine criminal law, the general rule is that one criminal act is counted as a separate crime. For
instance, to knowingly issue one unfunded check is one violation of the Bouncing Checks Law. Hence,
each unfunded check issued is counted as a separate crime even if the checks are subject of one
 Court-Annexed Mediation 31

of all such cases combined is only counted as one case. 38 Hence, it is

highly likely that the number of successfully mediated disputes
translates to more cases cleared from court dockets.

Notably, most (22 percent) of the successfully mediated cases involve

violations of the Bouncing Checks Law, which are essentially
collection cases that easily clog court dockets. These
accomplishments have been achieved with only 131 PMC units (less
actually at the time of the data analysis) in more than 2,000 trial
courts throughout the country. Establishment of more PMC units
thus promises a greater impact on docket decongestion.

Challenges

Challenges are neither good nor bad. Challenges are simply

challenges.
Carlos Castaneda

Court-Annexed Mediation has come a long way since the first

attempt in 1991, but, it was not an easy ride. It was fraught with
problems and challenges that were it not for the dogged determination
of PhilJA, Court-Annexed Mediation would have gone the same way
as other past pilot projects: a useful exercise.

Stakeholders’ Attitudes

Lawyers pose a major concern. They are not simply reticent about
mediation, most are outrightly hostile. Schooled in the adversarial
tradition, lawyers have to go through some kind of catharsis in order
to appreciate the value of settling a case rather than having a dispute
go through the long-winding court processes. Dean Eduardo de los
Angeles, Chairperson of PhilJA’s ADR Committee, noted that
lawyers experience a form of “neurosis” when they go to court to
settle a case within the bounds of the law, and then before pre-trial,
engage in a process of “forgetting the law” to explore the possible
settlement of the same dispute without trial. 39

transaction. In court-annexed mediation, separate crimes relating to one transaction may be

consolidated and mediated in one proceeding.
38
Under the Implementing Rules and Regulations on Mediation in the Trial Courts (Resolution No. 02-
04, March 23, 2004), “(w)hen there is consolidation of cases by the trial court and the Mediator for all
such cases perform only one mediation proceeding, then such consolidated cases settled are considered
as only one case.”
39
Dean De Los Angeles’ Court Annexed Mediation Lecture.
32 Court-Annexed Mediation

But, this attitude is not just a matter of paradigm, but also a question
of livelihood. Lawyers are wary that with the early resolution of their
cases through court-annexed mediation, they will be deprived of their
per appearance fee; hence, they see mediation as a threat to their
source of income. It’s a pity that the legal profession has slid into a
monetary bottom line mentality and has lost its service orientation.

All hope is not lost though, because it might be that as lawyers

mature in their practice, they will come to the realization that the
primary role of a lawyer is not to litigate – to be a hired gun, and thus,
win at all costs – but to be a problem-solver, a “reconciler of
divisions, a pursuer of just solutions.” 40 A few are beginning to tread
the less-traveled path. The incorporation of ADR courses in law
school education will be a step in the right direction. Lawyers should
be required to advise their clients regarding dispute resolution options
other than litigation, as part of legal ethics. Business groups have
started incorporating a provision to explore mediation and other
forms of alternative dispute resolution in case of business disputes in
their contracts; the legal profession should definitely follow suit.

Judges, too, who are crucial to the success of court-annexed

mediation, have to undergo a major paradigm shift. Some are taking
the leap, but a lot more have reservations about cases going out of
their dockets to be handled by non-lawyers. Judges have negative
assumptions about the ability of non-lawyer mediators to dispense
‘justice’ properly. Thus, not too many judges refer cases to the
Philippine Mediation Center, even if one exists in their jurisdiction.
They also dread the public ridicule of being called juezes de areglo. 41
Many judges have this notion that if a case in their docket is settled
rather than adjudicated, the public may think that the judge is either
lazy or incompetent.

This perception then leads to the public’s ignorance of alternative

dispute resolution, which is one of the major challenges in promoting
Court-Annexed Mediation. With the rituals, formalities, and
everything that the judicial system represents, a significant number of
the general public still believe that they can only get justice through
the courts, even if that means suffering the delays of the slow-
grinding wheels of the justice system.

40
Van Winkle, John R., “Mediation: A Path Back for the Lost Lawyer”, American Bar Association,
2001.
41
This was uttered by a Manila Regional Trial Court judge in an interview conducted by one of the
authors in 2007. The same judge said that should a judge allow a case to be settled rather than
adjudicated, the public will think that the judge is either lazy or incompetent.
 Court-Annexed Mediation 33

To increase the level of public awareness and appreciation of Court-

Annexed Mediation, continuous education and information drives,
advocacy briefings, development of a Communication Plan for Court-
Annexed Mediation and distribution of communication materials
were undertaken by PhilJA. The Mandatory Continuing Legal
Education for lawyers and the Mandatory Continuing Judicial
Training for judges now also include ADR sessions. These activities
need to be sustained in order to muster greater support for CAM.
Limited coverage

CAM only covers civil cases and the civil aspects of certain criminal
cases such as violation of B.P. 22 (Bouncing Checks Law) and quasi-
offenses (criminal negligence). Although B.P. 22 violations and civil
cases - particularly involving breach of contract and collection of sum
of money and damages - constitute the biggest bulk of cases filed in
courts, there is still a big room for extending CAM to civil aspects of
other minor crimes such as grave threats, slander, libel, and slight
physical injuries, which comprise the next biggest bulk of criminal
cases filed in court. 42

Minimal referral

The challenge of minimal referral significantly relates to the problem

with judges who adamantly refuse to refer cases to mediation despite
the strength of a Supreme Court directive. Although the number of
cases referred to mediation shows an increasing trend, Dean De Los
Angeles pointed out that the annual average of cases referred
represents only ten percent of the total cases that can be mediated.43
The potential of CAM in clearing court dockets is clear from the fact
that out of the 608,555 cases pending in first- and second-level trial
courts in December 2006, around 16 percent or 98,507 were civil
cases. This class of cases includes disputes that can be mediated.
With an average of 58,140 new civil cases filed each year, there are
potentially 156,647 44 mediatable civil cases in court. Ninety percent
of this number therefore, is yet to be brought to PMC units for
possible settlement. 45 Dean de Los Angeles thus proposed that the
42
Dean De Los Angeles’ Court-Annexed Mediation Lecture. The Asia Foundation, with USAID
support, is currently undertaking a research project on expanding the coverage of Court-Annexed
Mediation.
43
This was at the time of his lecture, using data from 2002-March 2007. Based on figures from 2002-
December 2007, the annual average of cases referred to mediation represents 11% of the 156, 647
potentially mediatable civil cases.
44
98,507 civil cases as of December 2006 plus 58,140 new civil cases filed each year (on the average).
45
Dean De Los Angeles’ Court-Annexed Mediation Lecture, citing Summary Report of Cases for Years
2000-2006, Statistical Reports Division, Court Management Office, Office of the Court Administrator,
2007.
34 Court-Annexed Mediation

courts target a total of, at least, 100,000 cases referred for mediation
each year. The Supreme Court’s call for a monthly inventory and
referral of cases for mediation in A.C. 20-2002 dated April 24, 2002
is still to be fully carried out.

It has been observed that referral of cases for mediation is at its peak
during special “Settlement Months.” A stronger directive may have to
be in place to ensure that all mediatable cases are referred for
mediation. This may be started with an audit of mediatable and
referred cases in courts, in areas with PMC units. Sanctions can be
imposed on judges for failure to refer cases for mediation.

Funding and Sustainability

Like many public endeavors involving a public good or service,

funding was, and still is, a key issue. In order to institutionalize
mediation in the 13 judicial regions, a nationwide roll-out is
necessary, but this means resources have to be sourced out
considering the financial and manpower limitations of PhilJA.

One solution that was implemented was to raise funds through the
imposition of mediation fees as part of the filing fee. Though in other
jurisdictions, e.g. the United States, court-administered mediation are
funded by public sources through a statutory user-free tax imposed on
new civil case filings, numerous issues have been raised as regards
this strategy to raise revenue for CAM, such as the inequity of cross
subsidy. 46 However, for now, the Supreme Court does not see a
better option. A nationwide audit needs to be conducted to properly
monitor collection and to impose the necessary sanctions for
compliance.

To address CAM’s sustainability, it is essential that PhilJA reviews

the three options presented by the Center for Public Resource
Management 47 in order to prepare for CAM’s expansion and thus,
sustainability:
(1) PhilJA’s full administration of the PMC and its units, i.e.
CAM units will be established and operated directly by the
Philippine Mediation Center and will be fully-staffed through
resources provided by the Judiciary;

46
Courts with no CAM in place will still have to collect mediation fees.
47
Organizational and Financial Study of the Philippine Mediation Center and its Units, funded by The
Asia Foundation with USAID support, completed in 2006.
 Court-Annexed Mediation 35

(2) Outsourcing of mediators while the PMC assumes

operational management; or
(3) Outsourced delivery and operations management, i.e.
delivery of mediation services including its operational
management will be contracted out, while policy formulation
and oversight functions remain with the Judiciary.

Currently, PhilJA considers Option 2 to be the most appealing among

the three proposed arrangements. Option 2 replicates the current
arrangement of the PMC and its units. This set-up, unlike Option 3,
gives PhilJA more direct control over the PMC units’ operational
management. At the same time, Option 2 allows for flexibility in
terms of funding and manpower because mediators are outsourced
and need not be regular employees of PhilJA, unlike in Option 1.

However, based on CPRM’s study, once CAM is implemented under

Option 2 in all trial courts nationwide, the Judiciary will still incur a
deficit even with full collection of mediation fees. Even the P29
million 48 existing Mediation Fund will not be enough to finance the
establishment and operation of PMC units in all judicial areas
nationwide, including the training of an additional 400-600 mediators
who will serve in these units. Hence, PhilJA will have to explore
variations of Option 2 for the nationwide implementation of CAM.
Given the resource constraints, PhilJA will need to look into the
possibility of rationalizing the establishment of PMC units throughout
the country by limiting units to courts with extremely congested
dockets and employing Judicial Dispute Resolution (JDR) 49 in courts
handling fewer cases.

Although funding is a primary concern in the expansion of CAM,

other related issues in case of a full roll-out should also be addressed,
such as:

Monitoring

Monitoring of cases referred, mediated, and successfully mediated

has been a source of problems in the past, but has seen significant
improvement in the present. Regular and up-to-date reporting of

48
The amount of the Fund the time of the CPRM study.
49
JDR, a component of CIDA’s JURIS Project, seeks to move the process of mediation and conciliation
to the level of the judge in order to decongest court dockets, contribute significantly to the fair resolution
of mediatable cases, increase satisfaction of litigants in the court process, as well as bring greater access
to justice, especially to the poor. JDR has been pilot tested in five model sites outside Metro Manila.
Early this year, JDR was introduced in Makati City, the financial center of the Philippines.
36 Court-Annexed Mediation

referred, mediated, and successfully mediated cases is a must, not

only for the sake of proper monitoring, but also for policy purposes.
Standard definitions of concepts such as “successful mediation” and
an enhanced data collection and management system in the PMC
must be developed.

Evaluation of Mediators

Training mediators is undoubtedly vital in CAM, but efficient

assessment procedures are also needed to ensure that accredited court
mediators meet required performance standards. Monitoring
performance of mediators to ensure quality is a must. Performance-
based evaluations and client feedback are necessary if PhilJA and the
PMC want to ensure quality and competent mediation. PhilJA will
have to determine the most appropriate tool for gathering relevant
information on mediators and there are many such tools. 50 Should
PhilJA focus on mediator’s success rate (though of course, this focus
on results does not produce a complete picture of the process or even
the quality of the settlement)? Should simulated mediation be made
as basis for assessment (though, of course, this tool does not
demonstrate satisfactory prediction and it can be expensive)? There
are self-assessment methods which are often used to expose reflective
thinking patterns and give evidence of a mediator’s professional
development. It has been found out in studies that at a later stage of
their professional training, mediators develop the ability to define
skills through constant self-reflection. 51

Decreasing success rate

A noticeable cause of concern in the implementation of CAM in the

past is the decreasing success rate, from as high as 84 percent in 2002
down to 62 percent in 2006. This observation calls for an inquiry
into: 1) the judges’ compliance with the Supreme Court’s directive to
refer all mediatable cases; 2) the litigants and their lawyers’
confidence in the mediation process; and 3) the performance of
mediators. 52 The year 2007 posted a significant improvement and

50
See tools used by the Colorado Office of Dispute Resolution; the Institute for the Study of Conflict
Transformation’s Summative Assessment for Certified Transformative Mediator; Mediator Certification
by the Maryland Council for Dispute Resolution; and Mediator Certification by Family Mediation
Canada, as cited in Senft, Louise Phipps and Cynthia Savage, “ADR in the Courts: Progress, Problems,
and Possibilities”, ADR Handbook for Judges, ABA Section of Dispute Resolution, 2005.
51
Lieberman, Etty, Yael Foux-Levy, and Peretz Segal, “Beyond Basic Training: A Model for
Developing Mediator Competence”, Conflict Resolution Quarterly, Vol. 23, No. 2, Winter 2005.
52
Ibid.
 Court-Annexed Mediation 37

there appears to be an upward trend in 2008, but there is a need for

consistency in this regard. An accurate analysis of these reported
rates should be done including comparison of additional data relating
to the periods of time covered by the reports, the types of disputes
involved, and other relevant factors. Thus, monitoring of cases
referred, mediated, and settled becomes even more relevant.

However, assessing the success of CAM from a purely statistical

analysis of final dispositions may not always reflect its true worth.
For example, the settlement of one case from one court docket may
be perceived as having little impact on the court’s productivity. From
an overall case management perspective, one settled case is one less
case the court must process through its system. Thus, an efficiently
managed CAM will enable the judges to focus their attention on those
cases that cannot be amicably settled and must be decided in an
adversarial process.

Another way to determine the success of CAM is to ask the parties to

the mediation process for their assessments. After the end of a
mediation process, whether a settlement agreement is reached or not,
the parties should be asked to complete a mediator and or/CAM
evaluation questionnaire. PMC can develop a simple questionnaire
that will, in the end, help the court evaluate CAM. The questionnaire
should be able to generate data that will respond to questions such as:
• How many and what types of disputes are usually
referred?
• What is the disposition time for each type of dispute?
• Did the settlement reduce the number of cases in the
court’s docket?
• Did the reduction in the court’s docket have any impact on
the efficiency and productivity of the courts?
• Do the bench, bar and general public support CAM?
• Do the bench, bar and general public consider CAM to be
beneficial to their interests?

These questions will lead to some kind of cost-benefit analysis that

will help prove whether or not CAM is beneficial overall. More than
five years have elapsed since CAM was first implemented, so there
must be sufficient cases to study to see whether certain case
characteristics can reliably predict settlement. This can help PhilJA
enact new policies that will automatically cover such cases.
38 Court-Annexed Mediation

Mediation Core Values

Even when mediation doesn’t produce a settlement, it doesn’t

necessarily mean it is a failed mediation. Resolution doesn’t always
have to imply a compromise agreement though that is one possibility
of many valuable outcomes. Other positive outcomes include: 53
• the ability to speak and to be heard;
• the chance to talk about what may be irrelevant to lawyers,
but very important to the parties;
• the narrowing of important issues;
• clarity about what is most important to the parties;
• freer, more unfettered conversation between the parties;
• better understanding of those involved and their situations;
• restoration of good faith;
• strengthened reputation and stature; and
• agreements based on genuine terms created by
participants, both pecuniary and non-monetary.

“Voice and choice” 54 , these are the alternatives that mediation

promises and from these spring the core values of mediation.
Perhaps, PhilJA and PMC should identify the core values of
mediation beyond that of settlement. In this way, the beneficial
effects of mediation can be registered even if the parties decide it best
to continue the litigation after the mediation, and to simply allow the
judicial system to determine the legal outcome.

Specialization

Practicing lawyers have complained about the lack of capacity of

mediators to handle specialized cases such as those involving family
law (e.g. separation of property, support, custody) cases. Considering
that these cases have their own peculiarities and sensitivities, PhilJA
has started the specialized training of mediators, at least in the area of
family law. This ensures the competence and expertise of a mediator
to handle a case. Future endeavors should look into the need for
further specialization in areas like commercial law.

53
Senft, Louise Phipps and Cynthia Savage, “ADR in the Courts: Progress, Problems, and Possibilities”,
ADR Handbook for Judges, ABA Section of Dispute Resolution, 2005.
54
Ibid.
 Court-Annexed Mediation 39

Future Beckons: Future Directions

Never make forecasts, especially about future.

Samuel Goldwyn

Though the Philippines has both formal (in the case of the Barangay
Justice System) and informal traditions of dispute resolution
processes in various ethno-linguistic groups (e.g., the Tiyawan of the
Tirurays or the Bodong System of the Kalingas), court-annexed
mediation compared to these indigenous systems is still in its infancy.
Thus, it is quite tempting to predict the future direction of Court-
Annexed Mediation because the possibilities are incredibly diverse,
given the experience worldwide. But, any attempt to determine the
future of Court-Annexed Mediation will be nothing but a glimpse,
and even then, will only be of immediate probabilities.

For example, it is tempting to say that the future beckons more

extensive use of mediation (with the expansion of CAM and the
rising cost of litigation); increased public awareness (with more cases
referred and successfully mediated); greater sophistication among
lawyers and judges (result of greater use of mediation); increased
choice and expertise of providers (greater use of mediation means
greater need for mediators, which, in turn, means greater competition
among mediators and thus, greater competency); increased research
and evaluation (a natural consequence); and most importantly, the
beginnings of a culture shift for the courts (from a passive provider of
trials to an active problem solver).

There is an increasing tendency towards all the above; however, these

may or may not fully happen as it is still too early to tell. It is safer to
simply attempt to chart some routes that PhilJA and the PMC can
take.

The following is a menu of future prospects for Court-

Annexed Mediation:

(1) CAM’s transformation into a “Multi-Door Courthouse.” This

might be far into the future and might be a long-term goal for
CAM; but it is part of the horizon which PhilJA and PMC can
gaze into.
40 Court-Annexed Mediation

The “Multi-Door Courthouse” was first conceptualized in 1976

by Harvard Professor Frank Sander who proposed the assignment
of certain cases to alternative dispute resolution processes or a
sequence of processes, after screening in a Dispute Resolution
Center. The idea is to have one courthouse with multiple dispute
resolution “doors” or programs. Cases are referred to the
appropriate door for resolution. The “doors” can be mediation,
arbitration, case evaluation, or conciliation, among others. A
multi-door approach will provide citizens with easy access to
justice, reduce delay, and provide links to related services,
making more options available through which disputes can be
resolved. 55 The following are two doors that PhilJA might
consider:

• Court-Annexed Arbitration as one of the “doors” has been

discussed, judges have been trained, rules drafted, but it has not
yet taken off the ground. Once the Supreme Court en banc
approves the draft rules, a second “door” will be made available
to the public.

• Should we stretch our imagination further and look into the

next generation of dispute resolution systems, we see in the
horizon online dispute resolution or ODR. Also known as “online
ADR,” “eADR,” “iADR,” “virtual ADR,” “cyber mediation,” and
“cyber arbitration”, ODR is simply the virtual or online extension
of ADR, the use of technology, particularly the Internet, to deliver
traditional ADR services. The same neutrals with generally the
same skill set as in off-line processes, can be used, with the added
twist of using the medium of technology.

A range of communication methods can be utilized, including e-

mail, instant messaging, online chat, threaded discussion (also
known as bulletin boards), video and audio streams, and video
conferencing. Other innovations include the use of language-
independent multimedia services (MMS), a store-and-forward
method of transmitting graphics, video clips, sound files, and
short text messages over wireless networks, similar to SMS, push-
to-talk technology, as well as the growing use of phones that can
record sound, images, and video. Samples of ODR include the
more well-known SquareTrade.com and ClickNSettle.com. In the
United States, when disputes cannot be resolved through
automation or when automated systems are not enough to resolve
the dispute, parties have the option of bringing in an online
55
www.dccourts.gov/dccourts/superior/multi/index.jsp.
 Court-Annexed Mediation 41

mediator who comes from a roster of mediators located

throughout the US or the world. 56

In an ODR pilot supported by The Asia Foundation, 57 a lot of

people were found to be skeptical of ODR out of a belief that the
cold, impersonal realm of cyberspace cannot adequately
accommodate human emotions and meet the needs of disputants
as fully as face-to-face ADR processes. In a sense, the fear is that
the human factor is lost in ODR. However, throughout the world,
millions of people are seeking and receiving assistance in the
resolution of their disputes online, through mediation, arbitration,
facilitated dialogues, teleconferences, video conferences and
hybrids, which integrate online technologies into traditional ADR
processes. But at the time of the pilot, many were not ready for
the technological innovations.

While not all cases are appropriate for ODR, disputes with low
economic value or with parties who are geographically
segregated, are best for ODR since it makes economic sense, as it
may be less costly and more practical than off-line mediation.
There are disputants who file cases but don’t realize that the cost
of going to courts might be more than the economic value of the
case. Thus, the greatest advantages of ODR are the cost and
convenience factors. The courts can be a trailblazer in this respect
if ODR becomes one of the options in a multi-door courthouse.
The easiest route would be for the courts to start with an
asynchronous format where communication is not occurring
simultaneously between the disputants and mediator, as in a chat
room, but instead through a series of emails or other messages
separated by time. After some time, the courts can move on to
more sophisticated technologies.

The advantage of a multi-door courthouse is that cases are

matched with the dispute resolution process, thereby, increasing
the possibility for compromise. In multi-door programs in the
US, for example, domestic relations cases are generally referred
to mediation, whereas civil cases are referred to ADR and it is the
parties, in consultation with their lawyers, who determine the
appropriate ADR process. More varieties of ADR processes are
56
For more information on ODR, resources include “Colloquy: The Human Face of On-Line Dispute
Resolution” by Melissa Conley Tyler and Susan Raines; “Keeping Pace: On-Line Technology and ADR
Services” by David Syme; “Mediating in Your Pajamas: The Benefits and Challenges for ODR
Practitioners” by Susan Raines; “Transforming Landscapes: Forging New ODR systems with a Human
Face “ by Sanjana Hattotuwa; and Accreditation of On-Line Dispute Resolution Practitioners” by
Melissa Conley Tyler and Jackie Bornstein; Conflict Resolution Quarterly, Vol. 23, No. 3, Spring 2006.
57
Cyberspace Policy Center for Asia and the Pacific
42 Court-Annexed Mediation

being invented or designed to fit the particular needs of disputes

and parties. 58

The very concept of a multi-door courthouse requires a

revolutionary shift in the court’s conception of its role, from that
of a “passive provider of trials” to an active problem solving case
manager, or as in some courts, ‘to a catalyst in community change
and conflict transformation.” 59 Are our courts ready for this role?

(2) Another prospect is a Multiple-Step Negotiation/Mediation

(similar to some of the procedures supported by the JURIS
project). In a multi-step procedure, a dispute that is not resolved
at one level moves progressively to higher levels, with different
mediators at each step. Unlike in the JURIS project (where all
steps are handled by judges), the succeeding steps need not be
handled by a judge (in order to save the judge’s time), but by
retired members of the bench and bar whom the courts can
employ on a part-time or volunteer basis. As former members of
the judiciary and the bar, retired judges and lawyers provide some
of the advantages of having sitting judges and experienced court
employees serving as mediators. Depending on their background
and professional reputation, retired judges and lawyers probably
have considerable credibility among practicing lawyers and their
clients, and should be able to command a high level of trust and
cooperative interaction. If these retired members of the bench and
bar are not compensated, the presumption of neutrality and
confidentiality is higher. If they are trained as mediators, they
will be able to generate the same degree of trust and confidence as
mediation professionals.

(3) The use of CAM in small claims court is another possibility. It is

a well-known fact that mediation is used mostly in jurisdictions
where there are small claims courts because cases are small and
thus, suitable for mediation. As of this writing, no small claims
court has been established yet but there is a plan to pilot these in
selected areas sooner or later. 60 The Supreme Court will just have
to utilize existing PMC structures and processes to push for
mediation in small claims courts.

58
Senft, Louise Phipps and Cynthia Savage, ADR in the Courts: Progress, Problems, and Possibilities,
ADR Handbook for Judges, American Bar Association Section of Dispute Resolution, 2004, page 299-
300.
59
Ibid., pages 301-302.
60
The American Bar Association is working with the Office of the Court Administrator in the pilot of
small claims courts.
 Court-Annexed Mediation 43

(4) As Court-Annexed Mediation matures and prospers, there will

also be a need to clarify the term mediation as it is currently used.
In the beginning, the courts immediately embraced mediation
without sufficient attention to, and clarity about, the goals and
quality of the mediation process adopted. Is facilitative mediation
the norm or are other forms of mediation allowed, such as
evaluative and transformative mediation? Is mediation being
confused with a settlement conference, thus the pressure on the
mediators to settle? To answer these questions, PhilJA and PMC
need to look into the core values of Court-Annexed Mediation as
a program. It should be noted that ideally, mediation core values
should extend beyond a mere settlement conference. Settlement,
as mentioned earlier, should be seen as only one of many
successful outcomes, which may include speaking freely and
being heard, reducing hostility and confusion, and greater
personal satisfaction, among others. When these terms are
clarified, standards of practice and even ethical standards that
should guide mediators will be better understood.

(5) Since the CAM program seems to be focused on settlement

anyway, it might as well deliberately address procedural and case
management issues also. For example, the mediation conference
can help parties simplify or clarify issues and resolve procedural
matters in order to streamline the trial process when cases are not
settled. Steps toward case management at the conclusion of a
conference can improve the quality of briefs and oral arguments
which can expedite the trial and decisions on the case. However,
this innovation will require a different set of skills and processes
for the mediators.

(6) Further, as court-annexed mediation becomes more sophisticated,

PhilJA might consider also exploring the possibility of an “Opt-
In” approach. Currently, since court-annexed mediation is
mandatory, the approach is that of an “Opt-Out” when the parties
refuse to settle. Opt-in will ensure that those who want their cases
mediated, even outside those directly mandated by the Supreme
Court, will be allowed to do so. With this, the courts will be seen
as true dispute resolution providers.
44 Court-Annexed Mediation

Conclusion

As can be gleaned from the preceding discussion, it is impossible to

predict the future growth directions of CAM with any degree of
certainty. The most that can be said is that given proper stimulus,
such as: the strengthening of mediators’ groups; the rise in popularity
of ADR and CAM, in particular; and the further rise in the costs of
litigation, among other factors; it may be likely that the level of usage
of CAM will steadily increase in the years to come. Increased usage
of CAM will then probably lead to a rise in referral and settlement
rates, which, in turn will result in more judges, lawyers, and ADR
practitioners gaining more experience, skills and knowledge in
making effective use of CAM processes.

Once these happen, PhilJA and PMC should be ready to handle more
referred cases. The impact of a greater volume of cases to be
mediated, on efficiency and effectiveness should be considered. It is
not too early to plan for these future scenarios as more PMC units are
established throughout the country. In the end, what is important is
that CAM should go beyond simply decongesting court dockets or
lessening the burden of the court by reducing the number of cases that
require judicial attention (though these are very important
aspirations). CAM should genuinely offer parties an affordable and
readily accessible means of resolving their disputes before spending a
substantial amount of time and money in case preparation. It should
also assure the public that the courts are truly concerned about the
emotional and financial welfare of the people and demonstrate the
collaborative commitment of the bar and the judiciary to provide
affordable and timely dispute resolution options.

Perhaps, then, the prognosis of US Justice Sandra Day O’Connor will

likely come true for the Philippine judiciary that “courts should not be
the places where resolution of disputes begin. They should be the
places where the disputes end after alternative methods of resolving
disputes have been considered and tried.”
 THE LAWYER’S PERSPECTIVE ON ADR IN THE COURTS
AND ITS IMPLICATION ON THE PROFESSION

By:

Imelda D. Gidor

Bridges, not merely shields

Leading, bearing
Never barriers

In search of truth, answers or protection, clients pursue lawyers.

Whether the issue hinges on business ventures or on common
community squabbles, the law profession constantly bridges distances
between need and remedy, between right and obligation. Ideally, it is
called upon to traverse the chasm between man and the promise of
law. And even when the law itself holds no promise, as when it is
prejudiced, biased or inadequate, some lawyers still cross over and go
the distance towards reforms.

ADR IN COURTS: A LAWYER’S PERSPECTIVE

Lawyer: A vessel of solutions

In going the distance, however, the lawyer’s combative trial skills often
overshadow the essence of his being, first and foremost, a vessel of
solutions. Sadly, he is known more as a warrior, programmed to argue,
oppose and survive, than to counsel, negotiate or bargain. Heated court
exchanges define how he sifts through conflicts, how he slugs it out for
years, even decades. In the courtroom saga, his reputation is mainly built,
his competence usually judged. While trial skills are vital, the challenge
is to cater these appropriately to solve problems without undue delay.
Surely, there is a “better way”. In the words of the former Chief Justice
Hilario Davide, Jr 1 :

“x x x may you find refuge and beacon in the erudite

words of the UNESCO Constitution that ’since wars
begin in the minds of men, it is in the minds of men
that the defenses of peace must be constructed.’ x x x

1 Excerpts - Keynote Address by C.J. Hilario G. Davide, Jr., at the launch of the Court of Appeals Mediation Project, 31 Aug.
2005, Court of Appeals Mediation Room & Auditorium, CA, Manila
46 ADR and Lawyers

when the battle is finally over and the hostilities come

to a halt, when the adversaries decide x x x to
amicably settle x x x, it is at this pristine and serene
moment that we appreciate Shakespeare’s wisdom in
his work, Henry IV:

‘A peace is of the nature of a conquest;

For then both parties nobly are subdued,
And neither party loses.'
“Truly, the triumph of justice and peace is a victory x
x x that transcends barriers, shatters walls and builds
bridges. It is a victory that benefits humanity x x x.”

Preferential use of ADR in courts: Reinforced, Encouraged

The Supreme Court consistently holds that delay in the administration of

justice erodes and undermines people’s faith and confidence. 2 In no
uncertain words, it reiterates:

“Any delay in the administration of justice, no matter

how brief, deprives the litigant of his right to a speedy
disposition of his case. Not only does it magnify the
cost of seeking justice. It undermines the people’s faith
and confidence in the judiciary, lowers its standards
and brings it to disrepute.” 3

Indeed, the establishment and promotion of alternative modes of

dispute resolution (ADR) mirror not only the urgency for a “better
way” but also validates the consistent bias for speedy disposition,
embodied in no less than the Constitution4 , statutes 5 , the Rules of
Court 6 and Supreme Court issuances 7 . No less compelling is the
affirmation of two Chief Justices.

2 RE: Judicial Audit conducted in the Regional Trial Court, Branch 54, Lapu-lapu City, A.M. No. 05-8-539-RTC, November
11, 2005; Re: Report on Judicial Audit (MTCC, Br.5, B.C.), Nov. 23, 2004
3 OFFICE OF THE COURT ADMINISTRATOR vs. N. DILAG, Adm. Matter No. RTJ-05-1914, September 30, 2005
4 1987 CONSTITUTION, ARTICLE IV, Section 16. “All persons shall have the right to a speedy disposition of their cases in all
judicial, quasi-judicial, or administrative bodies.”
1987 CONSTITUTION, ARTICLE VIII, Section 5.- Par. 5 - Supreme Court’s mandate to: “Promulgate rules concerning the
protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts x x x. Such rules shall provide
a simplified and inexpensive procedure for the speedy disposition of cases x x x.” (emphasis supplied)
5 Civil Code, Articles 2028-2030; 2034, see footnote 17
“Alternative Dispute Resolution Act of 2004”, R.A. No. 9285
6 1997 Revised Rules on Civil Procedure, Rule 1, Sec. 6: “Construction. – These Rules shall be liberally construed in order to
promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding.”
 ADR and Lawyers 47

Chief Justice Reynato S. Puno opined that:

“I have no doubt that the ADR will succeed in our

jurisdiction. Conciliation, mediation, arbitration, mini-
trial, early neutral evaluation are devices more in
accord with our culture roughly known as ‘ayusin ang
hindi pagkakasundo.’ It is difficult to capture the
essence of this culture but it speaks of our innate
desire for harmony, for good neighbor relations, and it
also communicates our disdain for discord and our
dislike of disunity. x x x Unfortunately, our exposure
to the western system of justice changed this culture of
‘ayusan’ and ‘pasensiyahan’. We were taught that
disputes should be resolved in courts, in an adversarial
manner, thru combatant lawyers and thru a procedure
which a layman can hardly understand. Our courts
have become bitter if not bloody battlegrounds, as
venues where litigants engage in high cost combat, as
arenas where the truth is often blurred by procedural
technicalities, and where at the end of the day, justice
not infrequently comes too late and too little. I like to
think that the ADR will contribute to the revival of our
culture of ‘ayusin ang gusot, habaan ang pasensiya’ in
the higher interest of harmony in the community and
good relations with our neighbors. x x x [S]tress in an
adversarial system of justice has brought forth too
great a volume of vile, too much guile in our practice
of law. It is time to have less barbarism and more of
‘bayanihan’ in the way we settle our disputes.” 8

For his part, Chief Justice Hilario G. Davide, Jr. expressed

that:

1997 Revised Rules on Civil Procedure, Rule 18, Sec. 2 and 2(a): “Sec. 2. Nature and Purpose. – The pre-trial is mandatory. The
court shall consider:“(a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution;”
Revised Rules on Evidence, Rule 130, Sec. 27 - Offer of Compromise Not Admissible - see footnote 19
7 A.M. No. 04-3-05-SC – Guidelines for Parties’ Counsel in Court-Annexed Mediation Cases
A.M. No. 03-1-09-SC - RE: Proposed Rules on Guidelines to be Observed by Trial Court Judges and Clerks of Court in the
Conduct of Pre-trial and Use of Deposition-Discovery Measures
A.M. No. 04-1-12-SC – Re: Proposed Guidelines for the implementation of An Enhanced Pre-trial Proceeding through
Conciliation and Neutral Evaluation.
8 Excerpt - Keynote Address by C.J. Reynato S. Puno entitled “ADR-A Welcome Development”, 2nd International Conference
on Construction Arbitration, New World Renaissance Hotel, Makati City
48 ADR and Lawyers

“In a world where dynamism and innovation are

expected and required of even the oldest of
Government institutions in order for it to effectively
serve an increasingly complex society, the court has
continuously sought changes to its age-old structures
so that judicial resources can be leveraged with
significant impact on increasing access to justice.
x x x [The] court’s agenda for judicial reforms x x x
encapsulated in the Action Program for Judicial
Reforms (APJR), includes x x x institutional
development reforms and access to justice by the poor.
One important innovation under the APJR is the
introduction of the court-annexed mediation program
being implemented by the Philippine Judicial
Academy, which is an alternative dispute resolution
(ADR) mechanism aimed at unclogging the court
dockets. From the time of its inception, the court has
tried different approaches to strengthen ADR practice
in the country and improve the mechanics of the
program which we have installed in Metro Manila,
Cebu and Davao.” 9

ADR systems and approaches: Relevance

to the Legal Profession

The members of the Bar had long been exhorted to exert every effort
to assist in the speedy administration of justice 10 , as well as pursue the
same principles behind such recent ADR innovations as enhanced pre-
trial or court-annexed mediation, as enshrined in the Code of
Professional Responsibility:

Code of Professional Responsibility 11

“Canon 1 – A lawyer shall

uphold the constitution,
obey the laws of the land
and promote respect for law
and legal processes.

9 Excerpts - Keynote Address by C.J. Hilario G. Davide, Jr. at the Enhanced Court-Annexed Mediation Project Launch in San
Fernando City, Pampanga, held at the Benigno S. Aquino, Jr. Hall, July 30, 2004
10 M.C.B. SUZUKI, represented by M.T.B. GABUCO vs. E. TIAMSON, Adm. Case No. 6542, September 30, 2005
11 Code of Professional Responsibility, promulgated by Supreme Court, June 21, 1988
 ADR and Lawyers 49

“Rule 1.04 – A lawyer shall

encourage his clients to
avoid, end or settle a
controversy if it will admit
of a fair settlement.

“Canon 4 – A lawyer shall

participate in the
development of the legal
system by initiating or
supporting efforts in law
reform and in the
improvement of the
administration of justice.
“Canon 12 – A lawyer shall
exert every effort and
consider it his duty to assist
in the speedy and efficient
administration of justice.
“Rule 12.04 – A lawyer
shall not unduly delay a
case, impede the execution
of a judgment or misuse
Court processes.” (italics
supplied)

As held by the Supreme Court, “a lawyer has the duty to assist in the
speedy and efficient administration of justice. 12 To highlight the
point, the High Court said:

“While lawyers owe their entire devotion to the

interest of their clients and zeal in the defense of their
client’s right, they should not forget that they are, first
and foremost, officers of the court, bound to exert
every effort to assist in the speedy and efficient
administration of justice.” 13

However, for lawyers, the relevance of ADR systems as a practical

“alternative” is validated not so much in mere speedy case disposal as in
increased confidence in the administration of, and wider access to,
justice. Thus, despite the ADR innovations in the recent years (ADR in

12 A. Ramos & M.R.De Dios vs. A.J. Pallugna, Adm. Case. No.5908, Oct. 25, 2004
13 same as footnote 10
50 ADR and Lawyers

courts), such as enhanced pre-trial 14 , court-annexed mediation 15 , or

similar mechanisms 16 , which, in effect, reinforce the Civil Code’s 17
long-established preference for amicable settlement and compromise
agreements, adherence to ADR remains highly dependent on a lawyer’s
preferred strategy. While a client is entitled to an alternative or choice,
the exercise of this choice is usually left to the counsel’s discretion. Most
clients simply toe the line. Apparently, the involvement of lawyers
impacts greatly on the promotion, development and success of ADR.

Many still favor trial proceedings as, indeed, the rationale for it, in
certain cases, rings loudly today as in the past. But more and more
application of ADR has gradually squeezed into the basket of legal
services. While the concept of justice is strongly linked with court
proceedings, more and more claims are heard and remedied through
ADR.

ADR in courts: Lawyer Intervention Essential

The country’s legal system is definitely strengthened by ADR

mechanisms in courts, such as pre-trial/enhanced pre-trial, judicial
dispute resolution, statutes’ preference for settlement 18 or appeals
mediation. In civil cases (including civil cases instituted with criminal
cases), the choice not to litigate, the option to settle, the venue to
negotiate, is practically open across all stages of the case prior to
finality of judgment. From the inception of the case until judgment is

14 A.M. No. 04-1-12 –SC – Guidelines for the Implementation of an Enhanced Pre-trial Proceedings Through Conciliation and
Neutral Evaluation
15 A.M. No. 04-3-05-SC – Guidelines for Parties’ Counsel in Court-Annexed Mediation Cases
16 A.M. No. 03-1-09-SC - RE: PROPOSED RULES ON GUIDELINES TO BE OBSERVED BY TRIAL COURT JUDGES
AND CLERKS OF COURT IN THE CONDUCT OF PRE-TRIAL AND USE OF DEPOSITION-DISCOVERY MEASURES;
A.M. No. 01-10-5-SC – PhilJA – Designating the PhilJA as component unit of SC for court-referred, court-related mediation
cases and other alternative dispute resolution mechanisms, and establishing the Phil. Mediation Center for the Purpose
17 Civil Code, Art. 2028. “Compromise – A contract whereby the parties, by making reciprocal concessions, avoid litigation or
put an end to one already commenced.”
Civil Code, Art. 2029. “The court shall endeavor to persuade the litigants in a civil case to agree upon some fair compromise.”
Civil Code, Art. 2030. “Every civil action or proceeding shall be suspended: (1) If willingness to discuss a possible compromise
is expressed by one or both parties; or (2) If it appears that one of the parties, before the commencement of the action or
proceeding, offered to discuss a possible compromise but the other party refused the offer.”
Civil Code, Art. 2034. “There may be a compromise upon the civil liability arising from an offense; but such compromise shall
not extinguish the public action for the imposition of the legal penalty.”
18 Civil Code, Art. 2029 - see above;
Evidence, Rule 13, Sec. 27. Offer of compromise not admissible - see footnote 19
Family Code of the Philippines, Art. 151. - "No suit between members of the same family shall prosper unless it should appear
from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed.
If it is shown that no such efforts were in fact made, the case must be dismissed. This rule shall not apply to cases which may
not be the subject of compromise under the Civil Code.” ( italics supplied)
 ADR and Lawyers 51

rendered, counsel and litigants are free to settle 19 . Civil cases not
covered by court-annexed mediation, may even be settled, at the will
of the parties. Even cases on appeal may still be settled through
appeals mediation. But pre-trial remains the crucial turning point. On
several occasions, the High Tribunal said:

“In civil cases, judges are also required to take

advantage of the pretrial conference to arrive at
settlements and compromises between the parties, to
ask the latter to explore the possibility of submitting
their cases to any of the alternative modes of dispute
resolution, and at least to reduce and limit the issues
for trial.” 20
x x x [T]he holding of a pre-trial conference was the
best-suited solution to the problem as this stage in a
civil action is where issues are simplified and the
dispute quickly and genuinely reconciled. By means
of pre-trial, the trial court is fully empowered to sway
the litigants to agree upon some fair compromise.” 21
(italics supplied)

While anyone can mediate or negotiate, even non-lawyers, the

importance of relying on one’s legal counsel cannot be ignored. The
varied outcome of ADR processes in courts, (e.g., satisfaction of

19 Civil Code. Art. 1306. “The contracting parties may establish such stipulations, clauses, terms and conditions as they may
deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.”
Revised Penal Code, Art. 100. “Civil liability of a person guilty of felony. — Every person criminally liable for a felony is also
civilly liable.”
Revised Penal Code, Art. 104. - “What is included in civil liability. — The civil liability established in Articles 100, 101, 102,
and 103 of this Code includes:
1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.”
BUT NOTE PLS. - Evidence, Rule 13, Sec. 27. – “Offer of compromise not admissible. — In civil cases, an offer of
compromise is not an admission of any liability, and is not admissible in evidence against the offeror.
“In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an
offer of compromise by the accused may be received in evidence as an implied admission of guilt.
“A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to lesser offense, is not admissible in evidence
against the accused who made the plea or offer.
“An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as
proof of civil or criminal liability for the injury.”
Family Code of the Philippines, Art. 151. "No suit between members of the same family shall prosper unless it should appear
from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed.
If it is shown that no such efforts were in fact made, the case must be dismissed. This rule shall not apply to cases which may
not be the subject of compromise under the Civil Code.” ( italics supplied)
20 Ofc of the Court Adm. vs. D. Espanol, A.M. No. RTJ-04-1872, Oct. 18, 2004
21 Rizal Comm. Banking Corp. vs. Magwin Mktg Corp., G.R. 152878, May 5, 2003
52 ADR and Lawyers

claims, compromise agreement, limitation of issues, partial judgment

[partial compromise], withdrawal of claims/counterclaims/actions,
dismissal of civil liability in criminal cases or even execution of
settlements), have the force and effect of law and thus, affect legal
rights and obligations. Once approved, settlements forged, turn into
judgment of the court. Naturally, incidents relative to execution,
enforcement, compliance, and actual satisfaction/payment are reliant
on the dictates of the law. Thus, application and knowledge of the
law, then, are never inconsistent with ADR undertakings. Indeed,
lawyers, far from being unwanted, are needed in all facets of ADR
work.

ADR IN COURTS: IMPACT ON LEGAL PROFESSION

ADR intervention in court proceedings changed the face of

solutions. Now, it is catered to make-up for litigants’ constraints.
Now, it is tailored according to relative capacity and mutual
interests. With ADR’s wider and more varied approaches, it is easier,
now more than ever, for lawyers to create a kaleidoscope of answers,
more feasible and responsive to respective limitations and capacity.
By so doing, the lawyer can deliver better and explore possibilities
beyond the limits of an often protracted court case. The Supreme
Court, in its Guidelines for Parties’ Counsel in Court Annexed
Mediation Cases 22 , shares the vision it holds for the law profession in
the words of David R. Brink:

“I envision the day when attorneys will be viewed as

counselors, problem solvers, and deliverers of prompt,
appropriate and affordable justice”

ADR in Courts: Re-shaping the culture

of the legal profession

It is often said that ADR challenges lawyers to take in new, changing

roles. However, these “new” roles or skills are the same ones inherent
in the profession. Apart from being a court warrior, a lawyer has
always been known as an advocate or a consultant.
In the 1991 landmark case Cayetano vs. Monsod 23 , which illustrates
practice of law as client counseling, technical advice, documentation,
litigation or negotiation and documentation, the Supreme Court

22 A.M. No. 04-3-05-SC

23 G.R. No. 100113, 3 Sept. 1991
 ADR and Lawyers 53

further clarifies the nature of legal work as, in the words of Charles
W. Wolfram 24 :

“x x x work will require the lawyer to have mastered

the full range of traditional lawyer skills of client
counseling, advice-giving x x x and NEGOTIATION.
And increasingly lawyers find that the new skills of
evaluation and MEDIATION are both EFFECTIVE
for many clients” (emphasis & italics supplied)

The High Court states in the same case, that as early as the mid-
1970s, the University of the Philippines Law Center listed the
dimensions of the practice of law in even broader terms as advocacy,
counseling and public service.

Clearly, the knowledge and skills of mediation are long akin to law
practice. Only now, the roles are played, not in partisan or divisive
encounters, but in non-adversarial endeavor. Only now, the language
is spoken not to provoke, but to suit consensus-building. To be
precise, the culture of law practice is merely re-shaped to the
contours of ADR objectives.

For instance in court-annexed mediation, the Supreme Court, in its

Guidelines for Parties’ Counsel in Court Annexed Mediation Cases 25 ,
exacts a reorientation of attitudes and roles:

“Re-orientation of Attitudes towards Dispute

Litigation is based on the attitude that disputes involve

rights and remedies that are fought through the
adversarial system of justice for which lawyers have
been specially trained for. When litigation is shifted to
mediation, a different attitude is called for that would
view the dispute as a problem-solving opportunity for
lawyers to assist the parties resolve their differences in
ways that are productive for their future lives.

Re-orientation of Lawyer’s role in Mediation

24 “Modern Legal Ethics”, West Publishing Co., Minnesota, 1986

25 A.M. No. 04-3-05-SC
54 ADR and Lawyers

Re-orientation of Lawyer’s role in Mediation

It is important to stress that the lawyer’s role as

counsel for a party radically changes as the mode of
dispute resolution shifts from adjudication to
mediation. The premise must be accepted that counsel
must drop his combative role in adjudication and view
his new role in mediation as a collaborator with the
other counsel in working together toward the common
goal of helping their clients resolve their differences to
their mutual advantage. Whereas he is clearly
dominant in judicial trials, he must now accept a less
directive role to allow the parties more opportunities to
craft their own agreement. He must shift gears and
accept the role of an adviser or consultant.”

ADR in Courts: A Paradigm Shift

Moving from Positions to Interests 26

To realize maximum gains, the contours of ADR philosophy invite

lawyers to heed the call for a paradigm shift, by refocusing on parties’
interests, not solely on their rights. The latter set of criteria tightly
straps litigants to their respective positions. But interest-based
analysis equips parties to discover common interests lurking below
apparent differences. The movement from position to interests
increases the prospect of parties finding a field of MUTUAL AND
IDENTICAL INTERESTS. Expressed in priorities, expectations,
concerns, fears or values, these mutual interests can facilitate
collaborative efforts towards getting to acceptable solutions.

For instance, in collection cases, payment of principal and interests is

ideal. But where debtor’s limited capacity faces off with creditor’s
need for cash, a settlement of lowered interests and regular
installments may prove mutually helpful.

26 Discussion on this topic is based on “Introduction to Interest-based Mediation and Negotiation”, Training Module for Justice
Reform Initiatives Support-Phils., by MDR Associates Conflict Resolution Inc., Ottawa, Canada, Copyright 2004
 ADR and Lawyers 55

ADR Systems & Approaches: Impact

on lawyer-client dynamics

Many lawyers and clients bask in the success of ADR. Clients

appreciate prompt and appropriate actions, and a happy client always
reinforces good lawyer-client relations. The incentive to make ADR
work is understandably appealing to both, for several reasons.

First, it is resource-efficient.

(i) Time is gold: Probably one of the scarcest

resources today, time is almost incapable of pecuniary
estimation. When proceedings are fast, clients are
satisfied. Litigants can lessen, lower or even forego
some of their demands provided their claim is satisfied
promptly, or provided they are relieved of long months
or years of litigation.

Perhaps ADR’s best contribution is that it is truly an

alternative to time-intensive court hearings. In effect,
lawyers are afforded more opportunities to research,
cater to more clients, or even litigate cases not covered
by ADR mechanisms.

Also, the prospect of appeal, multiple appeals, or any

other intervening cases, within the main case (e.g.,
elevation of contested interlocutory orders), are
dispensed with, once a compromise is reached. This
accounts for a lot of savings, both in time and
resources.

(ii) Opportunity Cost: Often taken for granted,

opportunity cost is heavily incurred in long, protracted
court duels. Time away from work is income lost.
Time away from school is knowledge lost. Time away
from business puts profits at risk. All these are
incurred as often as litigants go to court, or prepare for
trial. Fortunately, ADR lessens these costs.

(iii) Cost-efficient, Appeal cost barred: Aside from

lesser exposure to months or years of accruing
lawyer’s fees, speedy results also mean less
56 ADR and Lawyers

transportation expense and less processing expense

(e.g., legwork, photocopying, transcript fees and
evidence presentation). Moreover, since a court-
approved compromise partakes of a final judgment,
any cost pertinent to appeal proceedings is
immediately barred.

(iv) “Settlement Fee”, Restructuring Attorney’s Fees,

Negotiation Clause: Client cost-savings ultimately
ripen into increased trust and confidence in his
counsel’s competence and integrity. This, of course,
attracts more clients.

Faster case turn-over does not have to mean reduced or

foregone income. A restructuring of attorneys fees in
the Retainer Agreement can include a Settlement Fee
payable upon amicable settlement, or such other
clauses as a Negotiation Clause or ADR Clause.

Second, it facilitates case and client management.

(i) Turning the wheels of law practice: To deliver

results is to manage a client’s case well. Determined
by fair and acceptable outcome, effective case
management turns the wheel of law practice. Given
the myriad nature of people’s troubles and ever-
changing needs, ADR allows the lawyer’s palette to
open wide for more shades and hues to closely
approximate the client’s preferred legitimate
landscape; not the lawyer’s, not the court’s. For it is
true that only the client can fully comprehend and feel
his needs, fears and sentiments. Indeed, these are
sometimes overlooked by lawyers and courts, often
without malice, in the intricacies of litigation.

(ii) Transcending language barrier, More opportunity

for expression: ADR emboldens litigants to transcend
the language barrier in formal adjudication processes.
Consensual exploration of issues encourages litigants
to talk freely in a manner that ratifies his/her
participation in the entire process of problem-solving.
With simpler processes and more opportunities for
 ADR and Lawyers 57

expression and communication, the attorney-client

relationship is strengthened.

(iii) Improved relations: At best, ADR brings

fulfillment as it restores trust and relationships. Again,
fulfilled clients bode well for the lawyer’s practice and
reputation.

Third, the interest of justice is served.

(i) ADR bridges the gap between law and reality.

While the motive of any law is beyond reproach, it is
sometimes inadequate or insufficient to address each
and every situation in the broad spectrum of conflict,
problems and suffering. When the law is imperfect,
when the law is not responsive, clients are most
helpless. ADR, with its varied approaches to conflict
resolution, can assist lawyers to bring in workable
solutions.

(ii) ADR closes the gap between law and culture.

Laws are meant to mirror a people’s culture. Many fall
short of this standard, however. A highly divisive trial
often worsens the situation. ADR mechanisms can aid
lawyers to see through deep-seated cultural biases in
the hope of unearthing shared values like family,
integrity, honor, trust and respect for elders.

(iii) ADR promotes guided self-determination: With

the assistance of counsel, parties-litigants are afforded
the privilege of self-determination, such as to decide
on the outcome most acceptable under the
circumstances. This being the case, delays or issues on
execution of judgment (by compromise agreement) are
unlikely to disturb compliance and enforcement.

(iv) Access to justice by the marginalized, Forging

linkages between lawyers & community: In view of the
above, access to and administration of justice are
improved. The savings in resources lead to stronger
trust in the justice system and in the integrity of
lawyers as well.
58 ADR and Lawyers

Conclusion

ADR is not exempt from valid criticisms. Just like any movement for
change or reform, the pursuit of ADR is not only about reaping its
rewards, but is also about hurdling inevitable challenges, as expressed
by Chief Justice Puno:

“x x x In the afterglow of all these happy

developments, let me inset, even if edgewise, a word
of caution. The ADR, for all its promise, is no magic
formula, not a cure-all to some of the well-perceived
shortcomings and shortfalls of our regular system of
justice. The ADR may no longer be an inchoate
concept, no longer a dismissible idea in fetus form but
it still has to develop a lot of undergrowth of roots and
overgrowth of branches to be fruitful to our people.
The stated goals…are speed, economy and justice in
the resolution of disputes. These are elusive goals for
there will always be honest differences of opinion
even among men of goodwill on what road and route
to take to achieve the objective….” 27

But certainly, for now, ADR widened the path towards solutions,
allowing lawyers to choose diverse avenues to complement litigation,
not merely supplant it, in enhancing its role as “deliverer of prompt,
appropriate and affordable justice.” 28

27 Excerpt - Keynote Address by C.J. Reynato S. Puno entitled “ADR-A Welcome Development”, 2nd International Conference
on Construction Arbitration, New World Renaissance Hotel, Makati City
28 A.M. No. 04-3-05-SC ; Statement by David R. Brink
 JUDICIAL DISPUTE RESOLUTION (JDR) AS AN
INNOVATIVE MODE OF DISPUTE RESOLUTION

Salvador S. Panga, Jr. ∗

I. Introduction

Judicial dispute resolution (JDR), as implemented in the Philippines,

is 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. Traditionally, judges have been seen as
stern, aloof and impartial dispensers of justice acting in accordance
with a strict, rights-based adversarial system. The JDR program
marks a radical departure from this concept, recasting the role of
judges from magistrates to mediators, placing greater emphasis on
value creation, joint problem-solving, option generation and the
improvement of the parties’ relationship, than on the ascertainment of
the parties’ respective rights and obligations.

JDR was introduced in 2004 as one of the initiatives of the

mediation/ADR strengthening component of the JURIS Project, 1 and
as an adjunct to the court-annexed mediation (CAM) program that
had earlier been put in place by the Supreme Court in all trial courts.
It was initially pilot-tested in the first- and second-level courts in
Pampanga and Bacolod, and eventually introduced in the trial courts
of Baguio/Benguet, Cagayan de Oro and San Fernando, La Union,
and their adjacent municipalities. 2 By the end of 2007, the program

∗ Primary Consultant, Judicial Dispute Resolution Evaluation Project. This article is an abridged
version of a longer evaluation report submitted to the JURIS Project.
1
The Justice Reform Initiatives Support (JURIS) Project is a five-year, $CDN 6.5 million project
designed to strengthen the use of mediation as a means of alternative dispute resolution (ADR),
improve access to justice, and support advocacy initiatives which contribute to over-all justice reform
in the Philippines. The JURIS Project was developed to contribute to specific needs identified in the
Supreme Court of the Philippine’s Action Program for Judicial Reform 2001- 2006 (APJR), that are
consistent with CIDA’s developmental goals, and the type of technical advisory services available
from Canada. (JURIS’ Project Description).
2
For Pampanga, the JDR program covers the following cities and municipalities: (i) City of San
Fernando; (ii) Bacolor; (iii) Sto. Tomas-Minalin; (iv) Mexico-San Luis; (v) Sta. Ana-Candaba; (vi)
Arayat; (vii) Porac; (viii) Mabalacat-Magalang; (ix) Clark, (x) Guagua; (xi) Lubao; (xii) Sasmuan;
(xiii) Floridablanca; (xiv) Sta. Rita; (xv) Angeles; (xvi) Macabebe; (xvii) Macabebe-Masantol; and
(xviii) Apalit-San Simon. For Negros Occidental, the program covers (i) Bacolod City; (ii) Murcia;
(iii) Don Salvador Benedicto; (iv) Silay City; (v) EB Magalona; (vi) Manapla; (vii) Victorias; (viii)
Talisay City; (ix) Bago City; (x) Pulupandan; (xi) Valladolid; (xii) San Enrique; (xiii) La Carlota;
(xiv) La Castellana; (xv) Moises Padilla; and (xvi) Isabela. For the Baguio/Benguet area, the program
covers (i) Baguio City; (ii) La Trinidad; (iii) Buguias; and (iv) Buguias-Bakun. For Misamis Oriental,
the program covers (i) Cagayan de Oro City; (ii) Jasaan-Claveria; (iii) Opol-El Salvador; (iv)
Tagaloan-Villanueva; and (v) Alubijid. For La Union, the program covers (i) San Fernando; (ii)
Agoo; (iii) Bauang; and (iv) Balaoan.
60 Judicial Dispute Resolution

was in place in some 156 trial courts in these five pilot sites. During
that period, approximately 5,000 3 cases underwent JDR. In early
2008, JDR was introduced in Metro Manila, with the program being
initially introduced in the Metropolitan and Regional Trial Courts of
Makati. Plans are currently underway to roll out the program in other
areas.

In August 2007, the JURIS Project commissioned this research team 4

to undertake an evaluation of the JDR program, which was then in its
third year in Bacolod and Pampanga, and nearing the completion of
its first year in Cagayan de Oro, Baguio and San Fernando, La Union.
Among other things, the researchers were asked to ascertain the
effectiveness of the program in terms of meeting its goal of increasing
the volume of case disposition. The team was also directed to identify
the necessary factors to make the program effective and recommend
how the program could be further strengthened, if and when the
Supreme Court decides to extend it to other areas. Finally, the team
was asked to determine the extent of approval or disapproval by the
end-users of JDR, in terms of value, fairness, acceptability and other
similar factors. This article discusses the current state of JDR in the
Philippines, and summarizes the research findings and
recommendations with regard to the JDR program.

II. The JDR Process

The authority of a judge to facilitate a settlement between parties has

long been recognized under the pre-trial provisions of the Revised
Rules of Court of the Philippines. Specifically, Rule 18 provides that
one of the purposes of the pre-trial is to consider the possibility of
amicable settlement. 5 However, prior to the introduction of the JDR
Guidelines, many judges were apprehensive that any active attempt
on their part to facilitate settlement may lead to a perception of bias
or undue interest that may prompt a party to seek their
disqualification, or worse. Consequently, “considering the possibility
of an amicable settlement” frequently meant little more in practice

3
This figure includes both completed and pending cases.
4
The team is composed of: the author as principal consultant, together with Atty. Claro V. Parlade,
Senior Partner, Parlade Hildawa Parlade Eco & Panga Law Offices; Dr. Melissa Lopez Reyes,
Associate Professor, Department of Psychology, De La Salle University; and Atty. Maria Sheila F.
Panga.
5
Rule 18 provides in part:
“Sec. 2. Nature and purpose.
The pre-trial is mandatory. The court shall consider:
(a) the possibility of an amicable settlement or a submission to alternative modes of
dispute resolution. x x x “
 Judicial Dispute Resolution 61

than asking the parties, at the start of pre-trial, whether any such
possibility exists. If the parties replied in the affirmative, the judges
would usually keep rescheduling the pre-trial conference until the
parties were able to submit a compromise agreement. If the response
was negative, the judges would simply move on to the other phases of
pre-trial (such as marking of exhibits, identification of witnesses,
simplification of issues) and then proceed to set the case for trial. 6

Recognizing this apprehension, and in order to underscore the

importance of the settlement process, the Supreme Court issued an
Administrative Order entitled “Revised Guidelines for the
Implementation of an Enhanced Pre-Trial Proceeding under the
JURIS Project, as Amended”, setting up a second-tier mediation
system to be conducted by the judges in five designated pilot court
areas in the Philippines. 7

The Guidelines divide judicial proceedings into two stages. The first
stage involves the filing of a complaint until the completion of CAM
and JDR, while the second stage consists of pre-trial to trial and
judgment. Under these Guidelines, all civil and criminal suits falling
under the category of mediatable cases 8 are first referred to a court-
appointed mediator, who is given thirty days within which to
facilitate a settlement. Cases that are not settled by CAM are then
referred back to the judge to whom the case had originally been
assigned, for a second attempt at mediation, which is called JDR. If
this second attempt at settlement is still unsuccessful 9 , the case is then
re-raffled to a different judge for pre-trial and trial. 10

6
Focus group discussions with 47 (out of a total of 156) first- and second-level court judges conducted
at San Fernando, Pampanga, Baguio City, Bacolod City, Cagayan de Oro City, and San Fernando, La
Union on various dates starting from November 28, 2007 until November 30, 2007.
7
A.M. No. 04-1-12-SC-PHILJA dated August 29, 2006. The explanatory note of this Administrative
Order reads as follows:
“Despite the priority given Rule 18 of the Rules of Court, as amended, for the amicable
settlement of cases, most judges go through the function of exploring settlement
perfunctorily for various reasons, including fear of being disqualified if he goes into the
process more intensively. Thus, it is the intention of the JURIS Project to restore the
importance of this priority and install innovative procedures that will remove such
apprehension.”
8
The following cases are to go through JDR after CAM:
a) all civil cases, settlement of estates, and cases covered by the Rule on Summary Procedure,
except those which by law may not be compromised;
b) cases cognizable by the Lupong Tagapamayapa (Panel of Conciliators) and those cases that
may be referred to it by the judge under Section 408. Chapter VII of Republic Act No. 7160,
otherwise known as the 1991 Local Government Code;
c) the civil aspect of BP 22 (Bouncing Checks) cases;
d) the civil aspect of quasi-offenses under Title 14 of the Revised Penal Code; and

9
e) the civil aspect of Estafa (Swindling), Libel and Theft.
Under the Guidelines, a JDR judge has either thirty days or sixty days to complete the JDR
proceedings depending on whether he presides over a first- or second-level court. First-level courts
(called “Metropolitan Trial Courts”, “Municipal Trial Courts”, “Municipal Trial Courts in Cities” or
“Municipal Circuit Trial Courts”) are generally those whose jurisdiction covers civil cases in which
62 Judicial Dispute Resolution

As a general rule, the JDR judge is not permitted to preside over the
trial of the same case if mediation does not succeed, unless the parties
specifically ask him to continue as the trial judge. The rule preventing
a JDR judge from hearing the case on the merits, in case of failure of
the JDR process, was designed to encourage candor and full
participation by the parties, who may otherwise be reluctant to
participate if they knew that information received during the
mediation may be deemed as an admission by the judge, and used as
evidence against them.

The Guidelines contain no specific limitation or mandate on the

manner by which a judge may conduct JDR. Thus, a judge is
perfectly free to adopt any approach or settlement technique he may
deem appropriate, for the purpose of encouraging the parties to settle.
In fact, the Guidelines specifically permit the JDR judge to use
mediation, conciliation, neutral evaluation or any combination of the
three processes to achieve settlement. 11

the amount in dispute does not exceed P100,000.00 (P200,000 for cases filed in Metro Manila), and
criminal cases where the maximum imposable penalty does not exceed six years’ imprisonment. If the
cases involve higher amounts or penalties, these would generally fall under the jurisdiction of the
second-level courts (called the “Regional Trial Courts). However, there are certain types of cases that
would always fall under the jurisdiction of the first-level courts regardless of the amount or penalties
involved. These include, among others, cases involving violation of the Bouncing Checks Law (BP
No. 22), as well as forcible entry and unlawful detainer cases.
10
A slightly different procedure is followed if the originating court is a single-sala court as differentiated
from a multi-sala court. The term “multi-sala court” means that there is more than one branch of the
same court sitting in a particular town or city. For example, there are about fourteen (14) Regional
Trial Court branches sitting in Bacolod City (RTC Branches 41 to 54) and eight (8) RTC branches in
San Fernando, Pampanga (RTC Branches 41 to 48). For multi-sala courts, the procedure outlined
above is followed. On the other hand, the term “single-sala court” means that there is only one branch
of the same court assigned to a particular area. For example, in the municipality of Initao, Misamis
Oriental, there is only one RTC branch that has been created (RTC Branch 44), so RTC Initao is a
single-sala court. For single sala courts, the procedure for JDR is that the case is first referred for
mediation to the nearest court, which may be physically located in the next town or city. If JDR is
unsuccessful in that court, the case is then returned to the originating court for pre-trial and trial under
the Guidelines.
11
The Guidelines state:
“The goal of JURIS in JDR is to strengthen conciliation in the model court sites during
the pre-trial stage in order to expedite the resolution of cases and thereby help
decongest court dockets by utilizing the following models:
(1) JDR judge as mediator;
(2) JDR judge as conciliator;
(3) JDR judge as early neutral evaluator;
(4) A combination of any of the above; and
(5) Such other models as the Design and Management Committee may find adaptable to
the local setting.
As a mediator and conciliator, the judge facilitates the settlement discussions between
parties and tries to reconcile their differences. As a neutral evaluator, the judge assesses
the relative strengths and weaknesses of each party’s case and makes a non-binding and
impartial evaluation of the chances of each party’s success in the case. On the basis of
his neutral evaluation, the judge persuades the parties to reconsider their prior
reluctance to settle their case amicably. The entire process comprises JDR.” (A.M. No.
04-1-12-SC-PHILJA, p. 3.)
 Judicial Dispute Resolution 63

III. JDR training

New JDR judges undergo several days of training to prepare them for
conducting JDR. The trainors typically include experienced JDR
judges, communications experts and officials from both the Design
and Management Committee of the Philippine Judicial Academy
(PHILJA) and the Office of the Court Administrator (OCA). 12 The
training is a combination of lectures on mediation theory, practical
exercises and role-playing, videotaped teaching demonstrations,
mentoring, sharing of experiences and discussion groups. 13

IV. The current state of JDR

A. Research methodology

In designing the research methodology, the team recognized that any

evaluation of the usefulness or success of the JDR program would
require an inquiry into both the actual case disposition rates as well as
the views of the end-users regarding the program. Accordingly, the
team decided to evaluate the JDR program in terms of six indicators,
namely: effectiveness; efficiency; stakeholder satisfaction; program
organization; service delivery; and program quality. The research
was conducted in three stages. The first stage involved the assembly,
collection and analysis of existing program data 14 , both for purposes
of establishing a baseline for the study as well as to obtain concrete
empirical indicators of specific program accomplishments 15 . The

12
Judge Divina Luz P. Aquino-Simbulan, Judicial Dispute Resolution: The Philippine Experience, at
http://www.iojt3conference.net/docs/ponencia26.pdf. The PHILJA is the research and training arm of
the Supreme Court. It is the office that will take over the active management and direction of the JDR
program upon the conclusion of the JURIS Project. The OCA is the office that assists the Supreme
Court in the exercise of its power of control and supervision over all courts and court personnel.
13
Id.
14
For this stage, the team obtained the raw data from the JURIS Local Area Researchers (LARs), who
were assigned to collect and assemble CAM and JDR program statistics from each of the participating
courts in their respective pilot sites. JURIS designated one LAR for each pilot site. In collecting the
data, each LAR was assisted by one or more JDR staff members working full-time on the site. The
program data collected by the LARs and JDR staff were compiled by the JURIS Research Team into
regular monthly statistical reports, both in spreadsheet and document form.
15
The team reviewed data gathered by the JURIS Project with respect to the different pilot areas, as well
as reports of JURIS based upon raw data obtained from the Office of the Court Administrator and the
pilot areas. Such data provided information on the following:
(a) average number of cases pending before the pilot courts within a six-month period
prior to the introduction of CAM/JDR in their respective pilot areas;
(b) average rate of disposition of the participating courts prior to the introduction of
CAM/JDR;
(c) average rate of disposition by the participating courts after the introduction of
CAM/JDR;
(d) total number of cases that went through CAM; and
(e) total number of unresolved cases that underwent JDR.
64 Judicial Dispute Resolution

second stage consisted of the generation of new data through the use
of survey instruments, 16 key person interviews and focus group
discussions 17 . The third stage involved field observation visits 18 to
each of the five pilot areas to capture information on the actual

In determining the impact of JDR, the team went beyond comparisons between court disposition rates
in the pilot courts before and after the introduction of CAM/JDR to note any increase or decrease. The
the first-level and second-level court statistics were also segregated to ascertain whether data would
bear out differences in effectiveness of CAM/JDR depending on the nature of cases, bearing in mind
that the bulk of cases handled by the first-level courts are bouncing checks cases and typically involve
minor sums of money, while cases in the second-level courts are more complex and often involve
more than simple monetary disputes. Possible correlations between increases or decreases of JDR
disposition rates were also studied along with increases or decreases in CAM dispositions and other
dispositions, to see if changes in JDR disposition rates are influenced by the success or failure of
CAM and other dispositions.
16
In order to determine stakeholder attitudes and perceptions regarding JDR, the team designed and
distributed survey questionnaires among all the 174 participating JDR courts (out of the 174 officially
listed as JDR pilot courts, the team eventually determined that only 156 actually conducted JDR,
since the others had been designated as special courts which oftentimes covered cases not eligible for
mediation under the JDR Guidelines). The respective clerks of these courts were asked to select two
of their pending JDR cases at random and, upon the completion of the JDR proceedings for these two
cases (whether or not the JDR proceedings resulted in settlement), to have each of the parties and their
respective counsel answer the questionnaires. In addition, each judge was also requested to
accomplish the survey forms. Using this procedure, a total of 1,566 questionnaires were sent-out.
From these questionnaires, the team received a total of 409 responses, for an overall response rate of
about 26%. Of the 409 responses received, 92 were from judges, 163 from lawyers and 154 from
litigants.
Separate questionnaires were drafted for each stakeholder group, with each questionnaire containing
an average of 35 questions. The survey questionnaires were designed to gauge the perceptions of the
stakeholders with regard to the following issues:
a. Stakeholder satisfaction
(i) usefulness of JDR
(ii) fairness of the JDR process
(iii) appropriateness of JDR
(iv) control over decision-making
(v) impact on relationship between the parties
(vi) satisfaction with outcomes
(vii) willingness to use JDR in future disputes
b. Program organization
i) adequacy of program directives, guides and standards
ii) over-all program coordination and management
c. Service delivery
i) extent to which potential participants have been made aware of program
ii) participant understanding of JDR process
d. Program quality
i) competence of judges in performing JDR
ii) competence of lawyers assisting parties in JDR
iii) neutrality and objectivity of JDR judges
17
In each of the five JDR pilot areas, focus group discussions (FGDs) were conducted among selected
groups of stakeholders (JDR judges, litigants and lawyers) to solicit their views on the above-
enumerated issues, and also to solicit views on how the program can be further improved. In order to
promote greater candor among the participants and allow more effective facilitation of discussions,
separate focus groups were conducted for each stakeholder group. The FGDs allowed a more in-depth
examination of stakeholder perception on various aspects of JDR and offered an opportunity to
validate or clarify survey results, and possibly provide contrasting perspectives. Among the issues
discussed at length were perspectives on the effectiveness of JDR, the factors that contribute to the
success of JDR, design shortcomings of the program and suggestions for improvement. Each
discussion took an average of two hours to complete.
18
The field observation visits to each of the pilot areas were primarily for the purpose of assessing the
adequacy of the training and skills of JDR judges. For every JDR session attended, a conference was
conducted with the judge prior to the JDR session, to discuss the judge’s views on JDR, style of
mediation, experiences, the use of other ADR processes as part of JDR, and similar matters. During
the session, the team observed how the judge’s technique reflects or varies from the JDR philosophy
and techniques described by the judge during the prior conference.
 Judicial Dispute Resolution 65

implementation of the program, generate a qualitative sense of the

experience, and validate some of the survey or focus group discussion
data obtained. Stage 1 was keyed towards assessing the first two
indicators, i.e., program effectiveness and efficiency. Stages 2 and 3
were intended to measure, both quantitatively and qualitatively,
stakeholder satisfaction, program organization, service delivery and
program quality.

Research Findings

1. Case disposition figures

As of the end of 2007, the case disposition statistics of the JDR

program 19 (excluding pending JDR cases), as indicated in Table 1
below, show uneven disposition rates among the participating courts,
ranging from a low of about 28% in Pampanga and Baguio, to a high
of approximately 68% in Bacolod. However, overall, the settlement
rate for all the participating courts is approximately 47%. This means
that of the roughly 3,500 cases that had undergone JDR by the end of
2007, almost half were successfully settled by the judges.
Considering that JDR is a second-tier ADR process that handles
presumably the more difficult, complex or intractable disputes that a
trained mediator had already failed to settle, the positive numbers
generated by the program were certainly significant by any standard.
20

19
Dean Raymundo Pandan, Dennis Lalata, Roda Cisnero, Veronica Tabique, Giselle Sanchez-Tan, “JDR
Statistics Report”, October 2006-December 2007. Monthly spreadsheets are on file with the author.
The statistics are collected regularly by the Local Area Researchers in all the participating courts
based on the regular reports submitted by these courts to the Office of the Court Administrator.
Although JDR was introduced in Bacolod and Pampanga in 2004, systematic collection of JDR
program data only started in 2006 after the program was rolled-out to Baguio, Cagayan de Oro and La
Union, so the foregoing data reflects only the JDR figures in all pilot sites starting October 2006.
20
In the full report, however, the team noted that if the post-JDR disposition figures were compared with
the pre-JDR disposition rates of all the participating courts, it was only in the first-level courts that
disposition rates increased significantly. In the second-level courts, there was no definite trend.
66 Judicial Dispute Resolution

TABLE 1
JDR Case Disposition Rates
Pilot Site No. of No. of No. of No. of No. of Settleme
cases cases cases cases cases nt rate
referred referred actually settled that (4) /
to JDR 21 to JDR submitte through refuse (4) + (5)
but no d to JDR JDR d to
(1) JDR took (1)-(2) (4) settle
place 22 (5)
(2)
23
Pampanga 736 26 710 199 511 28%

Bacolod/Negros 1151 171 980 626 354 63.87%

Occidental 24
25
Baguio/Benguet 790 105 685 192 493 28%

San Fernando, La 102 180 282 102 180 36.17%

Union 26

Cagayan de Oro/ 721 69 652 275 377 42.1%

Misamis Oriental 27
28
Total 3500 551 2949 1394 1915 47.27%

21 The number of cases reflected in the JDR Statistics Report above both in terms of “docket
count” or “folder count”. Docket count reflects the number of cases filed in a particular court
based on the assigned docket numbers regardless of whether these cases are related or may
have arisen out of a single transaction or event. Since courts are required to report the actual
number of cases pending before them, courts report their respective caseloads on the basis of
docket counts. Folder count, on the other hand, counts one dispute as one case regardless of
how many separate cases may have actually been filed by the parties arising from the same
transaction or event. For example, in cases involving violation of BP 22 (the Bouncing
Checks Law), if the accused is charged with having forged twenty checks, that would be
reflected as twenty separate cases under the docket count, since one criminal case will be
filed by the prosecutor’s office for each forged check. Under the folder count, however, that
would only be counted as one case. Using docket counts will reflect an inaccurate picture of
JDR settlement rates. In the foregoing example, when the twenty bouncing checks cases are
referred to JDR, there will only be one mediation proceeding conducted, and a settlement
would most probably result in the dismissal of all twenty cases. Reliance on the docket
count may lead to the conclusion that twenty separate mediation proceedings were
successfully conducted by the JDR judge, when in reality, only one was performed. The
figures cited above and in all other tables are based on folder counts as reflected in the JURIS
Statistical Reports.
22 The reasons why JDR may not have been conducted despite court referral include: the

refusal of the parties to submit the case to JDR; absence of one or both parties during the
scheduled JDR session; dismissal of the case or suspension of the proceedings by order of
the court; and similar reasons.
23 Data for Pampanga covers the period October 2006-November 2007.

24 Data for Bacolod/Negros Occidental covers the period October 2006-November 2007.
25 Data for Baguio covers the period October 2006-December 2007.
26 Data for San Fernando, La Union covers the period October 2006-December 2007.

27 Data for Cagayan de Oro/Misamis Oriental covers the period October 2006-December 2007.
 Judicial Dispute Resolution 67

2. Stakeholder views on the JDR program

i. Summary of Responses

The survey responses in all the pilot areas show that, in general,
judges, lawyers and litigants strongly support and approve of JDR.
Specifically, the surveys indicate the following findings:

ƒ The stakeholders perceive JDR as a useful and effective

means of resolving court disputes.

ƒ Despite prevailing opinion among stakeholders that it is

appropriate for judges to be mediators, there remains some
ambivalence on the part of judges and lawyers that is probably
rooted in a belief that a judge’s role is to decide cases on the
merits, and not to facilitate settlements.

ƒ JDR judges and the JDR process are widely perceived to be

fair.

ƒ The stakeholders are generally satisfied with JDR outcomes.

ƒ JDR is perceived to have resulted in improved relationships

between the disputing parties.

ƒ All stakeholder groups are willing to use JDR in the future.

ƒ JDR is perceived to be time and cost-efficient.

ƒ JDR program design and structure meet the goal of reducing

the courts’ caseload.

ƒ The current directives, guides and standards governing JDR

are adequate.

ƒ The stakeholders believe that the JDR program is well-

designed and managed.

ƒ Judges are viewed as effective in conducting JDR.

28 As of the end of 2007, there were approximately 1,500 JDR cases still pending before the five
pilot court sites. If added to the completed cases indicated in the table, the total number of
cases referred to JDR, both completed and pending, is approximately 5,000.
68 Judicial Dispute Resolution

ƒ Judges, and to a lesser extent, lawyers and litigants, believe

that JDR gives the parties the opportunity to discuss creative
options for settling disputes.

ƒ Judges are ambivalent on case appraisal and evaluative

techniques.

ƒ The stakeholders believe that it is the duty of the judge to

neutralize power imbalances during JDR.

ƒ Litigants and lawyers are satisfied with the quality of lawyers’

performance in JDR despite concerns on the part of some
judges.

ƒ All stakeholder groups strongly believe that participants fully

understand the JDR process.

ƒ Although perceived to be satisfactory in its present form, the

stakeholders support continuing the JDR program with
modifications.

ƒ The stakeholders strongly endorse implementation of JDR

outside the pilot areas.

The foregoing findings were confirmed by the focus group

discussions and field observations with the following additional
insights:

ƒ Due to the more complex nature of cases handled in the

second-level courts, it is more difficult to achieve the same
level of success in the second-level courts than in the first-
level courts.
ƒ Many judges consider JDR as superior to CAM because of the
following perceptions: (i) the CAM program has been losing
its good mediators because of low compensation; (ii) CAM
mediators lack the authority and moral ascendancy of a judge
which is helpful in facilitating settlement; (iii) the fact that
many CAM mediators are not lawyers hinders their
understanding of disputes; and (iv) mediators who are non-
lawyers cannot command the respect of lawyers and litigants.
Interestingly, lawyers and litigants largely agreed with the
foregoing observations.
 Judicial Dispute Resolution 69

ƒ While most agree that it is appropriate for judges to act as

mediators, some judges still believe that time spent doing JDR
is better spent deciding cases.
ƒ Many express the view that although the JDR program is
well-designed and managed, its success or failure depends
greatly upon the performance of the judge. Accordingly,
advanced training of judges is of fundamental importance to
the success of the JDR program.
ƒ There is strong support for the creation of specialized courts
for JDR.

ii. Discussion of Survey Findings

Questions in the survey 29 fall under four general categories, namely:

(a) stakeholder satisfaction; (b) program organization; (c) service
delivery; and (d) program quality. Respondents indicated their degree
of agreement or disagreement with the statements in the survey by
encircling a number from 1 (strongly disagree) to 4 (strongly agree).
In areas where the success indicator is measured by more than one
question, the response was expressed in terms of the mean of all
responses to the question, with higher scores indicating greater
agreement.

STAKEHOLDER SATISFACTION

In order to measure stakeholder satisfaction, the survey included

questions on judges’ and lawyers’ perceptions of the usefulness of
JDR in resolving disputes and reducing the court’s caseload; 30
stakeholders’ perception of the fairness of the judge and the JDR
process; 31 stakeholders’ satisfaction with the outcome of JDR; 32 the
impact of JDR on relationships between the parties; 33 stakeholders’
willingness to use JDR in the future; 34 stakeholders’ perceptions on
29
The survey questionnaires for the judges and lawyers were all drafted in English. The questionnaires
for the litigants were originally drafted in English but subsequently translated to the local dialects
with the help of local translators prior to distribution in the pilot sites. Thus, the team used Tagalog
questionnaires for the Pampanga litigants; Ilonggo questionnaires for the Bacolod litigants; Ilocano
questionnaires for the Baguio and La Union litigants (although the team reverted to the English
questionnaires in Baguio when advised that the litigants in the area preferred to answer the English
version); and Visayan questionnaires for the Cagayan de Oro litigants.
30
Judges Questionnaire (JQ) #21, 22 and 24; Lawyers’ Questionnaire (LaQ) # 21, 22 and 24.
31
JQ# 5,8,9 and 16; LaQ# 5,8,9 and 15; Litigants’ Questionnaire (LiQ) #5,8,9,15.
32
JQ#17, LaQ#16 and LiQ#16.
33
JQ#20, LaQ#20 and LiQ#19.
34
JQ#32, LaQ#31 and LiQ#26.
70 Judicial Dispute Resolution

cost-effectiveness and speediness of the JDR process; 35 and the

impact of JDR upon lawyers’ incomes. 36 The survey results showed
the following findings.

1. Stakeholders perceive JDR as a useful and effective means

of resolving court disputes.

Across all pilot regions, judges and lawyers indicated agreement that
JDR is useful and effective for resolving disputes (Table 2). This is
significant in view of the team’s earlier observation that JDR
disposition figures do not clearly establish a positive impact of JDR
upon case disposal rates, at least as far as the second-level courts are
concerned. It could be said that the perception stems from a belief
that ADR, in general, is useful and effective in resolving disputes.
Indeed, one of the propositions tested in the survey is that the use of
ADR processes is an effective way of resolving pending cases in
courts, and both lawyers and judges expressed agreement with this
proposition. 37 But an almost identical result was achieved with
respect to the proposition that the JDR program is effective in
reducing the number of pending cases in court. 38

TABLE 2
JDR is useful and effective in resolving disputes

Means given, if aspect

Region Respondent is measured by more than one survey question
All regions 39 Judge 3.02
Lawyer 2.98
Litigant

2. Despite the prevailing opinion among stakeholders that it is

appropriate for judges to be mediators, there remains some
ambivalence on the part of judges and lawyers that is probably rooted
in a belief that a judge’s role is to decide cases, and not to settle them.

35
JQ#18 and 19; LaQ#17 and 19; and LiQ#17 and 18.
36
LaQ#18
37
59 out of 92 judges agreed with the proposition, while 128 out of 141 lawyers agreed.
38
56 judges and 128 lawyers agreed with the proposition.
39
In this article, only the combined figures for all the pilot sites are presented. The full evaluation report
contains a breakdown of all figures for all stakeholder groups in each pilot site.
 Judicial Dispute Resolution 71

All stakeholders agree that it is appropriate for judges to be

mediators, with 79.2% of the judges, 85% of the lawyers and 91.5%
of the litigants agreeing to this proposition. Still, the answers of
judges and lawyers in the pilot areas with the most JDR experience 40
to two other questions in this section, betray some ambivalence with
respect to JDR. Almost a third of the judges in Pampanga and
Bacolod disagreed that it is appropriate for judges to serve as
mediators. Similarly, some lawyers in the area also disagreed (17%
in Pampanga and 20% in Bacolod). More telling is the response of
judges and lawyers to the proposition that JDR takes away from
judges the time that is otherwise better devoted to deciding cases.
This was, in fact, an oft-repeated sentiment in focus group
discussions. The survey response indicates that the belief persists that
judges should spend their time deciding cases, precisely because they
are judges. A remarkably high percentage of judges (70% in
Pampanga and 67% in Bacolod) and lawyers (56% in Pampanga and
70% in Bacolod) agreed. Table 3 is a breakdown of responses to the
proposition that it is appropriate for judges to serve as mediators.

TABLE 3
Appropriate for judges to be mediators despite some
ambivalence on the part of judges and lawyers

Region % of responses given if aspect is

measured only by one survey question
1: strongly disagree
2: disagree
3: agree
4: strongly agree
1 2 3 4
All regions Judge 5.5 15.4 39.6 39.6
Lawyer 2.5 12.5 45 40
Litigant 2.8 5.6 54.9 36.6

3. JDR judges and the JDR process are widely perceived to be fair.

The perception of the fairness of judges and the JDR process is

generally very strong among all stakeholders groups across all
regions (Table 4). All the judges obviously believed in their neutrality
and impartiality, and the lawyers and litigants largely agreed, except
for Baguio where litigants raised a serious question in this regard,
with almost half expressing disagreement.

40
Pampanga and Bacolod City, where JDR has been in place since 2004.
72 Judicial Dispute Resolution

The survey included three (3) propositions that dealt with actions of
the JDR judge, namely: (i) the JDR judge usually tries to steer the
parties towards a settlement that is fair to both parties; (ii) the JDR
usually tells the parties what his idea is of a fair settlement; and (iii) a
JDR judge usually helps the parties settle the case on terms that the
judge thinks is fair to both parties. Note that in each of the foregoing
propositions, the judge utilizes his own standard of fairness and
makes the parties aware of his opinion. Implicit in the use of these
techniques is adherence to an evaluative mediation philosophy, even
if only for situations identified as appropriate by the judge. The
responses of judges do appear to affirm this philosophy; there was
almost unanimity with respect to all three propositions. Lawyers and
litigants appear to be comfortable with this mindset, albeit with some
(but not substantial) objection, only to the proposition that a JDR
judge should tell the parties his idea of a fair settlement. Notable,
however, is the consistent disagreement expressed by roughly half of
Baguio litigants, effectively ascribing unfairness on the part of JDR
as a process and the JDR judges. The source of the Baguio litigants’
disenchantment is difficult to pinpoint, but their responses imply that
some felt that the settlement attained through JDR was not fair, 41 that
the judge ought to, but did not, call attention to the unfairness, 42 and
that the judge failed to tell them that they had the right to refuse to
settle in JDR. 43 It can be inferred, therefore, that the Baguio litigants
perceive JDR as unfair because of the failure of the judge to prevent
an unfair settlement, or viewed another way, for approving an unfair
settlement.

The stakeholders’ views on the role of the judge raises the issue of
whether or not the judges are perceived to be fair, constitutes an
approval of an evaluative approach to JDR. Judges appear undecided
themselves because even as they assert that they have the
responsibility to evaluate parties’ settlements on the basis of their
standards of fairness, a majority (61%) agree that a JDR judge should
give the parties free hand in determining the terms of the settlement,
even though the judge may personally believe that the settlement
gives one party a significant advantage over the other. Even while
giving parties a free hand, judges believe it is appropriate to tell a
party what he thinks the result would be if the case went to trial, in
order to encourage the party to settle (59%).

41
More than 60% of Baguio litigants disagreed that the JDR judge tries to steer the parties towards a
settlement that is fair.
42
Half of the Baguio litigants disagreed that the judge tells the party his idea of a fair settlement.
43
Half of the Baguio litigants disagreed that the judge told them that they had the right to settle or not
settle.
 Judicial Dispute Resolution 73

TABLE 4
JDR and JDR judges are perceived to be fair

Means given, if aspect

Region Respondent is measured by more than one survey
question
All regions Judge 3.49
Lawyer 3.29
Litigant 3.19

4. Stakeholders are satisfied with JDR outcomes.

All stakeholders expressed satisfaction with the outcomes attained

using JDR, although judges are the most satisfied stakeholder group
(with 96% agreeing or strongly agreeing that the outcomes are
satisfactory), followed by lawyers (88.5%) and then by litigants
(85.7%). But support is not even across all regions with litigants in
Bacolod and Baguio expressing dissatisfaction (80.8% and 38.5%,
respectively)

TABLE 5
Stakeholders are generally satisfied with JDR outcomes

% of responses given if aspect is

Region Respondent measured only by one survey question
1: strongly disagree
2: disagree
3: agree
4: strongly agree
1 2 3 4
All regions Judge 0 3.6 54.2 42.2
Lawyer 1.3 10.3 57.1 31.4
Litigant 6.8 7.6 51.6 34.1

Notwithstanding the positive responses with respect to JDR

outcomes, it must be borne in mind that satisfaction is partly shaped
by expectations and low expectations from the process sets a low bar
for satisfaction. While it is reasonable to consider satisfaction with
the outcome as an indication that the settlement is sufficiently aligned
with the parties’ interests, it is, nevertheless, possible that parties
agreed to a settlement for other reasons such as mistrust of the courts
combined with pragmatism, a desire to buy peace, or lack of
awareness of other more suitable options. If one’s expectation is a
rights-based settlement, one may be satisfied with a settlement that
may yield somewhat less than what the law provides, even if it does
not go far enough in accomplishing the parties’ interests.
74 Judicial Dispute Resolution

5. JDR is perceived to have resulted in improved relationships.

There is a strong perception of improved relationships resulting from

JDR, although it is notable that this perception is more prevalent and
emphatic among judges than among the litigants themselves. In
response to the statement that JDR resulted in improved relationships,
both judges and litigants expressed agreement (88.8% and 77.8%
respectively) but, while 46.3% strongly agreed with the statement,
only 26.7% of litigants strongly agreed. Also notable is the apparent
disenchantment among Baguio litigants, 45.5% of whom expressed
dissatisfaction.

TABLE 6
JDR is perceived to have resulted in
improved relationships

Region Respondent % of responses given if aspect is measured

only by one survey question
1: strongly disagree
2: disagree
3: agree
4: strongly agree

1 2 3 4
All regions Judge 0 11.3 42.5 46.3
Lawyer 1.4 15.4 51.7 31.5
Litigant 6.1 16.0 51.1 26.7

6. All stakeholder groups are willing to use JDR in the future.

Not surprisingly, all stakeholder groups overwhelmingly expressed

willingness to use JDR in the future with judges at 83.5%, lawyers at
93.8% and litigants at 89.2%. What is remarkable is the percentage of
litigants willing to use JDR in the future remains very high despite a
large percentage from Baguio (46.2%) expressing unwillingness.
Equally remarkable is that greatest support comes from lawyers
despite the popular conjecture that lawyers will oppose JDR out of
concerns over possible reduction in lawyers’ fees occasioned by early
settlement of cases rather than going through a full-blown trial. The
conjecture itself is not firmly based in fact, as roughly only half of the
lawyers reported a decrease in income on account of JDR, pointing to
adjustments in fee structure already being made by the legal
community.
 Judicial Dispute Resolution 75

TABLE 7
Strong indications of willingness to use JDR in the future

Region Respondent % of responses given if aspect is

measured only by one survey question
1: strongly disagree
2: disagree
3: agree
4: strongly agree
1 2 3 4
All regions Judge 2.4 14.1 44.7 38.8
Lawyer 0.0 6.2 50.6 43.2
Litigant 3.1 7.0 48.1 41.1

7. JDR is perceived to be time and cost efficient.

With respect to cost and time efficiency, JDR rates uniformly high
across all regions and among all stakeholder groups. JDR can reduce
costs for litigants because, unlike in CAM, there is no fee for JDR,
and the extent with which it accelerates dispute resolution lessens
actual and opportunity costs. For courts, JDR frees up court resources
by helping speed-up case disposal. For lawyers, JDR enables them to
handle more accounts by facilitating early settlement.

TABLE 8
JDR rates highly in terms of cost and time efficiency

Region Respondent Means given, if aspect

is measured by more than one survey
question
All regions Judge 3.45
Lawyer 3.32
Litigant 3.22

PROGRAM ORGANIZATION

The evaluation of program organization is based upon survey

questions pertaining to: stakeholders’ opinions on whether or not the
design of the JDR program meets the goals of reducing the caseload
of courts 44 ; the adequacy of directives, guides and standards that are

44
JQ#31 and LaQ#30.
76 Judicial Dispute Resolution

in place 45 ; and whether or not the JDR program is well-designed and

managed 46 .

8. JDR program design and structure meet the goal of reducing the
caseload of courts.

9. The current directives, guides and standards governing JDR are

adequate.

Judges and lawyers in all pilot areas agree that the JDR program
design and structure meet the goal of reducing the caseload of courts
(Table 9), and that the current directives, guides and standards
governing JDR are adequate (Table 10).

However, in Pampanga and Bacolod, judges registered a noticeably

higher level of disagreement with the proposition that the program is
adequately constructed to meet its goals. 47 In the same areas, judges
likewise registered a noticeably higher level of disagreement to the
proposition that there are sufficient procedures/guidelines in place, to
guide participants on the manner that JDR cases should be
conducted 48 . A quarter of the judges in Pampanga and Bacolod also
disagreed with the proposition that the program directives, guides,
and standards provided sufficient guidance to enable judges to
appropriately administer the program. Because of their longer
experience in JDR implementation, their opinions merit further
examination particularly on the specific areas that they believe are
inadequate.

TABLE 9
JDR program design and structure meets
goal of reducing caseload

Region Respondent % of responses given if aspect is

measured only by one survey question
1: strongly disagree
2: disagree
3: agree
4: strongly agree
1 2 3 4
All regions Judge 3.5 12.0 63.9 26.5
Lawyer 1.3 9.7 61.9 27.1
Litigant

45
JQ# 29, 30; LaQ#29; and LiQ#25.
46
JQ#33, 34; LaQ# 32, 33; and LiQ#27, 28.
47
27% in Pampanga, 23% in Bacolod.
48
30% in Pampanga, 35.7% in Bacolod.
 Judicial Dispute Resolution 77

TABLE 10
Directives, guides and standards governing JDR
perceived to be adequate

Region Respondent Means given, if aspect

is measured by more than one survey
question

All regions Judge 2.90

Lawyer 2.97
Litigant 3.08

10. Stakeholders believe that the JDR program is well-designed and

managed.

There is little disparity in the opinions of all stakeholders across all

regions with respect to the design and management of the program.
The JDR program is seen as well-designed and managed (Table 11).
The level of disagreement of judges to the proposition is somewhat
low but nevertheless, reflects some support for a redesign or some
modifications of the JDR program.

TABLE 11
JDR program seen as well designed and managed

Region Respondent Means given, if aspect

is measured by more than one survey
question

All regions Judge 3.01

Lawyer 3.08
Litigant 3.27

SERVICE DELIVERY

Service delivery is addressed in the survey through questions on: the

effectiveness of judges in conducting JDR proceedings 49 ; the quality
of lawyers’ performance in reaching out to other parties, looking
beyond legal positions, and creating options 50 ; and the participants’
understanding of the JDR process. 51

49
JQ#4, LaQ#4, and LiQ#4.

50
JQ#13, 14, 15; LaQ#12, 13, 14; and LiQ#12, 13, 14.
51
JQ#1,2,3; LaQ#1,2,3; and LiQ#1,2,3.
78 Judicial Dispute Resolution

11. Judges are viewed as effective in conducting JDR.

Except for the litigants in Baguio, all the stakeholder groups across
all the pilot areas affirm the effectiveness of judges in conducting
JDR (Table 12). Interestingly, the strongest affirmation came from
judges themselves, with 43.8% agreeing and 48.8% strongly agreeing
that judges conduct JDR effectively. In terms of numbers, lawyers
expressed greatest approval at 90.5%, although their approval was not
as strong, with only 37.3% agreeing. The lowest approval was given
by litigants at 87%, and although judges’ performance may be
commendable, this may indicate that even as judges are perceived to
be effective in attaining the goals of JDR, there remains a possibility
of improvement.

12. Judges, and to a lesser extent, lawyers and litigants, believe that
JDR gives the parties the opportunity to discuss creative options for
settling disputes.

It must be noted that while 100% of judges agree that the JDR judge
usually gives the parties the opportunity to discuss creative options
for settling the dispute, neither the lawyers nor the litigants fully
agree. Similarly, while all but one judge agreed that the JDR judge
usually gets the parties to look beyond their legal positions and focus
on settlement options that would solve the dispute; litigants’ support
for the proposition is comparatively lukewarm 52 .

13.Judges are ambivalent on case appraisal and evaluative techniques.

The responses of judges relative to the techniques they employ reflect

the findings on the perception of fairness and judges’, which revealed
some ambivalence with respect to the appropriate approach for
conducting JDR. There was substantial disagreement with respect to
the proposition that “the JDR judge usually tells me or my client his
opinion on the merits of our case if it went to trial”. For instance, in
Pampanga, only 35% of judges agreed while in Bacolod, 80% of
judges agreed. This statistic may indicate a preference for facilitative
mediation by Pampanga judges and evaluative mediation by Bacolod
judges. Yet, Pampanga judges were split down the middle with
respect to whether it is appropriate for the judge to tell a party what
he thinks the result would be if the case went to trial, in order to
encourage the party to settle.

52
20% of litigants in Pampanga, 23.6% in Bacolod, 50% in La Union, 53.7% in Baguio and 11.4% in
Cagayan de Oro disagreed.
 Judicial Dispute Resolution 79

With respect to the proposition that “I try not to influence the parties
on what terms or conditions the settlement should contain even where
I personally believe that a potential settlement would leave one party
significantly better off than the other”, Pampanga judges largely
agreed (70%) and Bacolod judges also agreed, albeit to a lesser extent
(60%). In this case, both indicate a preference for facilitative
mediation. With respect to the proposition that “the judge usually tells
the parties what terms or conditions the settlement should contain”,
Pampanga judges disagreed but Bacolod judges agreed, again
offering a contrasting approach to mediation.

TABLE 12
Judges are effective in conducting JDR

Region Respondent % of responses given if aspect is

measured only by one survey question
1: strongly disagree
2: disagree
3: agree
4: strongly agree
1 2 3 4
Judges 1.3 6.3 43.8 48.8
Lawyer 0.6 8.9 53.2 37.3
Litigant 2.7 10.2 43.5 43.5

14. Stakeholders believe it is the duty of the judge to neutralize power

imbalances during JDR.

There is strong support for a judges’ exercise of power to neutralize

power imbalances that may stand in the way of a settlement that is in
accordance with the parties’ interests (Table 13). Litigants highly
approve of the neutralization of power imbalances but 15.2% of
judges and 21.4% of lawyers disagreed. In practice, identification
and neutralization of power imbalances is much more difficult than in
theory because, in any given situation, there may be numerous power
imbalances and a judge cannot determine with mathematical
precision which imbalance is relevant to the settlement and the means
of neutralizing it. When a judge does attempt to neutralize power
imbalances, there is a danger of inviting a perception of partiality.
80 Judicial Dispute Resolution

TABLE 13
Judges should neutralize power imbalance

Region Respondent % of responses given if aspect is

measured only by one survey question
1: strongly disagree
2: disagree
3: agree
4: strongly agree

1 2 3 4
All regions Judge 4.3 10.9 56.5 28.3
Lawyer 5.8 15.6 53.9 24.7
Litigant 3.1 8.4 40.5 48.1

15. Stakeholders are satisfied with the quality of lawyers’

performance in JDR despite concerns on the part of some judges.

The quality of lawyers’ performance similarly meets approval by all

stakeholders across all pilot areas, although the overall approval is
appreciably less than that attained by judges. The mean scores given
by lawyers and litigants indicate healthy approval (3.19 and 3.13
respectively), but judges appear less satisfied (2.71). One possible
reason is that many judges feel that lawyers are generally unable to
look beyond legal positions in exploring settlement options that
would address their clients’ real interests. 53 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. 54

TABLE 14
Positive view on the Quality of Lawyers’ Performance

Region Respondent Means given, if aspect

is measured by more than one survey
question
All regions Judge 2.71
Lawyer 3.19
Litigant 3.13

16.All stakeholder groups strongly believe that participants fully

understand the JDR process.

All stakeholder groups strongly believe that participants fully

understand the JDR process (Table 15). Most stakeholders agree or
53
26% in Pampanga, 56% in Bacolod, 50% in Baguio, 50% in CDO.
54
35% in Pampanga, 43.5% in Bacolod, 50% in Baguio, 40% in CDO.
 Judicial Dispute Resolution 81

strongly agree that before starting a JDR case, the judge usually tells
the parties that they have the right to settle or not settle; that the
proceedings are confidential; and that the judge explains the court’s
guidelines on the conduct of JDR in detail to the parties.

TABLE 15
Participants understand the JDR process

Region Respondent Means given, if aspect

is measured by more than one
survey question
All regions Judge 3.48
Lawyer 3.39
Litigant 3.24

PROGRAM QUALITY

The survey solicited the stakeholders’ views on whether or not the

JDR program should be continued in its current form 55 ; implemented
outside the pilot court areas 56 ; or whether it should be continued with
certain modifications. 57

17. Although perceived to be satisfactory in its present form,

stakeholders support continuing the JDR program with modifications.

18. Stakeholders strongly endorse implementation of JDR outside the

pilot areas.

Continuation of the program in its current form appears to have the

support of lawyers and litigants (80.7% and 85.7%); in fact, the
supports appears generally higher although weighed down by
comparatively low approval rates in Baguio (70.6% for lawyers,
58.4% for litigants). In contrast to the support of lawyers and
litigants for the continuation of the program in its current form,
support of judges seems more lukewarm at 74.4% (Table 16).

Notwithstanding the stakeholders’ expression of support for the

continuation of the program in its present form, it appears that judges
and lawyers are eager to embrace some modifications (90.3% and
90.9%), while litigants agree to a lesser extent (75.8%) (Table 17).
55
JQ#35, LaQ#34, LiQ#29.
56
JQ#36, LaQ#35, LiQ#30.
57
JQ#37, LaQ#36, LiQ#31.
82 Judicial Dispute Resolution

This may indicate that judges and lawyers either feel a greater need to
improve the program or see potential for improvement in the JDR
process. Stakeholders appear to be sufficiently comfortable with JDR
as integral to court litigation as they strongly endorse its
implementation outside the pilot area (except the litigants in Baguio)
(Table 18).

TABLE 16
Lawyers and litigants strongly support continuation of
the JDR program in its current form

Region Respondent % of responses given if aspect is

measured only by one survey question
1: strongly disagree
2: disagree
3: agree
4: strongly agree
1 2 3 4
All regions Judge 1.2 24.4 43 31.4
Lawyer 1.3 17.9 56.4 24.3
Litigant 6.8 7.5 47.4 38.3

TABLE 17
Judges and Lawyers nevertheless welcome
program modifications

Region Respondent % of responses given if aspect is

measured only by one survey question
1: strongly disagree
2: disagree
3: agree
4: strongly agree
1 2 3 4
All regions Judge 2.4 7.3 48.8 41.5
Lawyer 0.7 8.5 55.6 35.3
Litigant 5.8 18.3 42.5 33.3
 Judicial Dispute Resolution 83

TABLE 18
Stakeholders agree on implementation outside pilot areas

Region Respondent % of responses given if aspect is

measured only by one survey question
1: strongly disagree
2: disagree
3: agree
4: strongly agree
1 2 3 4
All regions Judge 1.2 9.4 45.9 43.5
Lawyer 1.2 8.1 47.2 43.4
Litigant 3.6 6.6 46 43.8

V. Program Observations and Recommendations

Based on the foregoing findings, the research team made the

following recommendations and observations to the JURIS Project:

1. As the use of JDR is useful and effective in resolving disputes, the

implementation of the JDR program should be continued.

There is a consensus among all stakeholders that the JDR program is

working well, particularly at the first-level courts, and is a useful and
effective means of resolving disputes and reducing the caseload of
courts. This is borne out by the quantitative analysis as well, with
data showing that case disposal at the first-level courts during the
JDR period consistently exceeded the pre-JDR period case disposal.
Before the second-level courts, the impact of JDR is still unclear, and
optimism about its potential is accompanied by some skepticism as
well. Given, however, the widespread support from all stakeholder
groups, the team believes that the continuation of the JDR program
will be a positive development.

2. For the full potential of JDR to be realized, there is a need for

further training for judges, especially the second-level judges.

In the full report to the JURIS Project, the team noted that while it
appeared that JDR resulted in a significant amount of settlements, if
the post-JDR disposition figures were compared with the pre-JDR
disposition rates of all the participating courts, it was only in the first-
level courts that disposition rates increased significantly. In the
second-level courts, there was no definite trend.
84 Judicial Dispute Resolution

The team attributed this to two factors. First, parties have a much
greater incentive to settle early before the first-level courts because of
the limited penalty or amount that these courts are legally allowed to
impose or award. Thus, it may be easier for the first-level courts to
convince parties to compromise because early settlement is more
attractive than the prospect of a long drawn-out trial without the
possibility of a clear win. This, however, is not true in the case of
second-level courts. Considering the ability of second-level courts to
award higher amounts or impose tougher penalties, parties litigating
before the second-level courts may be more willing to go through a
lengthy trial with the expectation of a windfall.

Secondly, the more complex nature of cases that are heard before the
second-level courts may require a higher mediation skill set than
those that may be required for first-level courts. It is but natural that
more complex disputes be more difficult to settle, not only because
the higher cost of preparation for trial before the second-level courts
diminishes the financial incentive to settle, but also because there are
more issues requiring more than haggling over money that need to be
explored. Even the first-level judges agree that this is the case, with
their experience confirming that when the issue is all about how much
one wants to pay and how much another is willing to receive, chances
of settlement are greater. This makes sense, of course, because a dose
of realism on the capacity to pay of one party and the elimination of
posturing for bloated claims on the part of the other party, are
frequently all that is needed to prod parties to settle the case. But to
go beyond that requires more patience and skill, as well as a greater
investment of time and effort, on the part of the judge. In other
words, for JDR to attain the same level of success in the second-level
courts as those in the first level, second-level judges may have to
attain a higher level of competence in JDR.

This need is fully recognized by all the judges, as further training was
one of their most frequently suggested courses of action when the
team solicited recommendations for program improvement. Of
particular value would be knowledge-sharing among judges who have
JDR experience, as that would contextualize the conceptual or
theoretical part of training on interest-based negotiations/facilitation
and JDR techniques.

3. The creation of specialized JDR courts must be considered.

The JDR experience in the Philippines underscores the reality that

successful mediation of complex disputes requires specialized skills
 Judicial Dispute Resolution 85

that are not easy to acquire, especially for judges whose years of
training and experience in an adversarial environment may, in fact,
create a mental hurdle that hinders the acquisition of the mindset and
skills that a successful JDR judge needs. As suggested earlier,
acquisition of such skills require further, and possibly more advanced,
training but, such training across the board will require considerable
financial investment, a need that must be considered in light of
another reality – that of the limited judicial resources for this purpose.
Given this concern, the creation of specialized JDR courts may be an
option worth considering, for the following reasons:

i. 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.

ii. Specialized JDR courts will allow judges who do not have
the mindset, willingness or innate ability to conduct JDR to
continue what they do best, in accordance with their preference,
i.e., to try and decide cases. It is evident from the survey
responses and the focus group discussions that there were non-
believers among judges (mostly second-level judges) whose
training and experience are steeped in a decidedly adversarial
rights-based orientation. For those judges, it is unlikely that
anything short of a long, intensive training will lead them to
embrace JDR. On the other hand, there are others who are
“natural” mediators, with the instinct and just the right touch to
establish the necessary connection with disputing parties in order
to facilitate dispute resolution. 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.

iii. 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. In this regard, however, the team
notes the suggestions of judges that their performance be
evaluated not solely in terms of the quantity of settlements they
accomplish, but also in terms of the quality of outcomes. Some
have noted that certain disputes may require greater investment in
time and that would necessarily lessen the number of settlements
86 Judicial Dispute Resolution

they can attain. Evaluation that is solely based upon speed of

resolution may, therefore, lower the quality of settlements that
will be achieved by JDR. The team fully concurs with this
observation, although it notes that establishing a system of
evaluation on the basis of quality of outcomes will require further
study.

In short, as the JDR program has experienced considerable success

and acceptance before the first-level courts, and considering the
strong stakeholder support for its expansion beyond the pilot areas,
the team recommends that it continue to be fully implemented in all
first-level courts nationwide. However, with regard to the second-
level courts, the team recommends that specialized courts be
designated for JDR, rather than require all second-level courts to
perform JDR.

4. 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.

The focus group discussions yielded a common but surprising

observation; litigants, especially complainants in bouncing checks
cases, preferred to avoid CAM and, instead, would rather proceed to
JDR. 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. To this, an added
reason would be the relatively meager resources required to develop
JDR capacity compared to that required for full CAM deployment.
But with CAM and JDR in place, some lawyers and litigants
complain that the processes appear redundant because litigants are
more interested in JDR than in CAM.

Yet, it makes no sense to sacrifice CAM, a program that has yielded

substantial benefits to the judicial process and the public 58 , and there

58
Approximately 70% of all cases submitted to mediation under the CAM program are successfully
settled. See Jose T. Name, Jr., Summary of Court-Annexed Mediation Statistics for Years 2002-2006,
Philippine Judicial Academy (2007). According to this report, a total of 81,863 cases had been
 Judicial Dispute Resolution 87

are definite advantages in having a two-tier ADR process that filters

the intake of cases to be tried by the courts to disputes that really
require trial and court judgment.

A possible solution is the reversal of the order of remedies available

to litigants, with JDR as the first-tier process and CAM, the second.
A beneficial consequence of this suggestion would be the availability
of the benefit of a mediated settlement process to litigants without
having to pay CAM mediation fees first. This also immediately
addresses the concerns of many about the alleged deteriorating
quality of mediators and the lack of respect for non-lawyer mediators,
while offering the advantage of a neutral mediator with the moral
ascendancy of a judge. Consistent with the rights-based expectations
of the parties, the JDR judge may take advantage of the parties’
acceptance of its use of evaluative techniques to facilitate a
settlement. If JDR fails, the parties will then proceed to CAM, where
accredited mediators with appropriate training will conduct a
primarily interest-based mediation process.

5. The possibility of expanding the coverage of JDR should be

studied.

In the focus group discussions, there were suggestions to expand the

coverage of JDR to include cases not expressly mentioned in the
guidelines, as well as certain categories of criminal cases. 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.

6. Fairness in outcome and stakeholder satisfaction will be enhanced

by the clarification of the judges’ role in JDR, to be incorporated in
JDR guidelines and in training modules.

The high stakeholder perception of the fairness of judges and the JDR
process, in general, is encouraging and speaks well of the judges
participating in the pilot program. Still, the survey responses that
relate the fairness issues to the manner by which JDR is conducted,
even those expressed by a minority, are helpful and instructive in
considering possible improvements to the JDR program.

referred to mediation over the last six years of the 42,729 cases that actually underwent mediation,
28,563 or 70% were settled.
88 Judicial Dispute Resolution

First, considering the high approvals of the present manner that

judges conduct JDR, 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.
The survey results show that lawyers and litigants appear to be
comfortable with this mindset. FGDs identify this as a reason for
litigants’ preference of JDR over CAM. The ability to render a
neutral evaluation is also identified in the FGDs as an advantage of
JDR over the old pre-trial process. Also, the FGDs identify neutral
evaluation as the best way to address frivolous claims and give a
reality check to litigants.

Second, not only is active guidance preferred by the stakeholders, but

failure to provide such, is viewed as resulting in unfairness or unfair
outcomes 59 .

Third, judges seem to be caught in a conceptual debate between

facilitative and evaluative mediation. This is seen from the disconnect
between the preference for evaluative methods in practice, and their
expression of adherence to facilitative mediation, expressing the view
that parties should be given a free hand in determining the terms of
settlement, even though the judge may personally believe that the
settlement gives one party a significant advantage over the other. In
practice, mediators seldom use purely facilitative or evaluative
techniques, and instead use a combination of both approaches. The
current Guidelines do not call for either approach. Instead, it merely
identifies the role that judges may take in JDR, including the JDR
judge acting as a mediator and an early neutral evaluator. There is
nothing that prevents judges from combining facilitative and
evaluative techniques.

Fourth, even so, the team noted that the litigants’ support for the
proposition that JDR allows exploration of creative options is
comparatively lukewarm. 60 This suggests that even neutral evaluation
may not suffice as a stand-alone technique. It requires that parties feel
that they are actually heard, storytelling being a very important part
of the mediation process. Storytelling is key to understanding the
parties’ underlying interests and facilitating option generation.

59
Please refer to the analysis of the Baguio litigants’ disenchantment with the JDR process.
60
20% of litigants in Pampanga, 23.6% in Bacolod, 50% in La Union, 53.7% in Baguio and 11.4% in
Cagayan de Oro disagreed.
 Judicial Dispute Resolution 89

Fifth, the survey responses and the focus group discussions leave
little room for doubt that correction of power imbalances is perceived
as a critical function of a judge, which calls for a significant
qualification to the principle that the parties should be allowed to
freely enter into any settlement that they may deem appropriate.

Finally, the team noted that JDR does not have to be limited to any
one technique; given the strong rights-based orientation of the
stakeholders, consideration must be given to employing mini-trials,
whether binding or non-binding. This addresses the hesitation of
some judges in using neutral evaluation without the benefit of seeing
the evidence of the parties.

Given the above considerations, we recommend some clarification on

the judges’ role in JDR, both in the guidelines and in training
modules, with emphasis on (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.

7. Initiatives for enhancing awareness of lawyers and litigants on JDR

should be adopted.

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. Although much of this is addressed by the ADR course
requirement in the Mandatory Continuing Legal Education Program,
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.

8. 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.

Although the survey indicated that all stakeholder groups strongly

believe that participants fully understand the JDR process and that the
90 Judicial Dispute Resolution

JDR judge explains the process to the parties and apprises them of
their right to settle or not settle, the focus group discussions revealed
litigant concerns that judges do not take pains to describe the process
at the start of the JDR proceedings. In fact, the team learned that
oftentimes, judges issue subpoenas to the parties to compel their
attendance to the JDR sessions. 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,
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.

III. Conclusion

The three-year JDR experiment has clearly yielded extremely

encouraging results, as seen from the disposition statistics, survey
findings and the focus group discussions. 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. Whether these achievements can be sustained and
reinforced as the program moves on to its next phase is the challenge
that confronts all those involved.
 REDISCOVERING OLDEN PATHWAYS AND VANISHING
TRAILS TO JUSTICE AND PEACE:

INDIGENOUS MODES OF DISPUTE RESOLUTION

AND INDIGENOUS JUSTICE SYSTEMS

Maria Roda L Cisnero*

In CARAGAN VALLEY in the Province of Compostela Valley sometime

in 2004, two Mandaya residents, Pedro and Juan 1 of Barangay
Langgawisan went to the forest to hunt. While aiming his
bukakang 2 at a wild boar, Pedro accidentally shot Juan who, at that
moment, was after another wild boar. Instantly, Juan died of the
gunshot wound to his chest. Fearing for his life and possible
retaliation from Juan’s relatives, Pedro surrendered to the Poblacion
police station. However, the police did not receive any complaints
and they released Pedro from detention after twenty four hours. Upon
his release, the police station radioed the Barangay Captain of
Langgawisan to inform him of the incident. After the body of Juan
was recovered, his family asked for the intervention of the Barangay
Captain to settle the case. Immediately, the Brgy. Captain referred
the case to the Limpong ng Mangkatadong 3 for settlement. Through
the Mandaya’s 4 indigenous disputes resolution mechanism, the case
was settled, with the family of Pedro handing over some of their
possessions, including Pedro’s hunting ground, to the family of Juan.

_______________________
*Maria Roda L. Cisnero writes about the study conducted by the IP Cluster of the Alternative Law
Groups (ALG) on Indigenous Dispute Resolution Mechanisms and their interface with the national
justice system. As the Research Coordinator of the study, she provides a preview of the cluster’s
research findings, with the guidance of the Legal Assistance Center for Indigenous Filipinos (PANLIPI).
The article is a fusion of the case studies written by the members of ALG IP Cluster, insights shared
during the conduct of the research, initial analysis of the research and the writer’s reflections. This
article serves as the main document for the continuing internal discussion of the ALG on the matter.
Please email: info@alternativelawgroups.org for your comments and suggestions.

1
Names of Respondents withheld upon request.
2
An improvised shotgun
3
Council of Elders
4
The tribal name "Mandaya" is derived from the Mandaya word "man" meaning "first", and "daya"
meaning "upstream" or "upper portion of a river”. The name therefore means "the first people
upstream". The term refers to a number of groups found along the mountain ranges of Davao
Oriental; it also refers to their customs, language, and beliefs. The Mandaya are also found in the
municipalities of Compostela and New Bataan in Compostela Valley Province as well as other areas
all over the entire Davao Oriental Province.
92 Indigenous Mode of Dispute Resolution

Up North in Baguio, sometime in July 2006, three young male adults

from Bontoc were killed in Baguio City by an individual from
Belwang (Sadanga) who was accompanied by someone also from
Bontoc. Tribal war was in the offing. The Belwang tribe sought the
intercession of MBTELA 5 to facilitate the dialogue between the
parties involved. A representative of MBTELA went to Bontoc and
proposed that negotiations and dialogue be conducted in Baguio City,
since the incident happened there. The municipal and barangay
officials of both Bontoc and Belwang met in Baguio. Negotiations
took the better part of the whole day. Settlement was had at around 8
o’clock in the evening. As a result, tribal war was prevented and the
case was settled without going to court.

Similarly, in other parts of the country, indigenous dispute resolution

in many varied forms remains to be the most appropriate and
effective mechanism for settling disputes and peace-keeping. The
process is called: Tongtong among the Kakanaey and Bago peoples of
Bakun; Tigian among the Alangans and Hirayas of Mindoro
Occidental; Mame’epet among the Tagbanuas of Coron in Palawan;
Husay among the Higaonons and Talaandigs of Misamis Oriental and
Bukidnon; Kukuman among the Tinananon Manobo of Arakan
Valley; Iskukom among the T’bolis of Lake Sebu; Tiwayan among
the Tedurays of Maguindanao; and Gukom among the Subanons of
Zamboanga. There are also many existing indigenous justice systems
that have no formal or common names but are still very much in place
and in use.

There is a growing interest in indigenous dispute resolution

mechanisms (IDRM) and peace-building processes. This is, in part,
attributed to the continuing institutionalization of various Alternative
Dispute Resolution (ADR) mechanisms in the administration of
justice in the Philippines.

Despite the increased curiosity and the continued efficacy of these

systems and processes, there has been little in the way of legal
scholarship into indigenous laws. 6 Similarly, it has been observed
that anthropological and sociological studies of indigenous law in the
Philippines have also been extremely limited. 7

ADR – from Court Annexed Mediation and Judicial Dispute

Resolution down to the Barangay Justice System (BJS) – are now part

5
Metro Baguio Tribal Elders and Leaders Assembly see forthcoming discussion in this article.
6
Augusto B. Gatmaytan, Change and the Divided Community, 10 PHIL. NAT. RES. L.J. 1 (2000) 47
7
Ibid.
 Indigenous Mode of Dispute Resolution 93

of the country’s national justice system. The psychology behind it

has been dissected. The economics of litigation has worked against
itself. The historical rootedness of ADR mechanisms however, has
been mainly limited to how Filipinos generally (and wrongly)
perceive history – that was, and that which will never be.

The fact is, these so-called innovations and alternative mechanisms

are not new to the Philippines. Dispute resolution mechanisms have
been in existence, to use an IP legalese jargon, since time
immemorial. From another perspective, one can even argue that
IDRM is the mother of all dispute resolution processes in the country.

Unfortunately, IDRM are, in most cases, not properly recognized,

barely understood and hardly respected. Worse, most of the efforts
concerning IDRM are focused on integration and assimilation into, if
not an interface with, the formal justice system. Codification and
formalization usually become the primary recommendations.

Goals and Objectives

With the main objective of promoting respect and recognition for

traditional indigenous practices for settling disputes, the Indigenous
Peoples (IP) Cluster of the Alternative Law Groups (ALG) conducted
a study on IDRM. The primary goal of the project was to generate
policy proposals or recommendations mainly for the judiciary to
analyze the possibility of interfacing it with the current judicial
system. The proposal likewise provided that if the research process
arrives at a conclusion that a policy proposal for purposes of
interfacing is not feasible, recommendations would still be generated
to find other more workable and acceptable options.

The specific goals of the project were to: (1) Undertake review and
legal research of relevant legal instruments and related literature on
existing indigenous and Moro dispute resolution mechanisms; (2)
Provide substantive and qualitative documentation through one-shot
case studies, at the community level, of existing IDRM; and (3)
Undertake analysis of gathered data, focusing on areas of conflicts on
IDRM, as practiced, vis-à-vis the wider divide of indigenous justice,
versus the formal justice system.
94 Indigenous Mode of Dispute Resolution

Limitations of the Study

The researchers, at the early stages of the project’s inception, realized

the need to define several concepts such as: indigenous dispute
resolution mechanisms, customary law, indigenous justice system and
interface. Unfortunately, there appears to be no single definition of
these concepts which may be considered acceptable across the
boundaries of legal and sociological scholarship (Gatmaytan,
2005:47). For purposes of this research, these four terms will be
understood essentially based on the definitions provided by Republic
Act 8371 or the Indigenous Peoples Rights Act (IPRA) 8 and RA 9054
or the Strengthened and Expanded Organic Act for the Autonomous
Region in Muslim Mindanao. 9

Initially, the research was focused on merely identifying the existing

IDMR processes and procedures, validating the continued observance
of such, and determining the kind of cases generally handled. As the
study progressed, the researchers realized the naiveté of singling out
parts of the process. Fact is, these organs of IDRM are intimately
intertwined with its varied norms and procedures that generally
include the jurisdictional or justice-related functions of the
indigenous communities. The study, by trying to reacquaint itself
with IDRM, showed the very essence of indigenous justice systems as
playing an integral role within a specific context, for purposes of
providing justice and preserving harmony in the community. Hence
from hereon, IDRM and indigenous justice system (IJS) will be
loosely interchanged from time to time, or referred to at the same
time.

The concept of interface is used in two levels. Stage one of the

project is mainly descriptive of the circumstances and instances
where the separate legal systems of the IDMR in the focus areas vis-
a-vis the national legal system coordinate, meet or clash. For the
second stage, interface refers to looking into spaces where these
independent, and often unrelated, justice systems can meet
effectively, in an attempt to identify workable policy options in the
interest of promoting access to justice and justice reform.

Another limitation of the study is that the focus areas for the case
studies were randomly selected. The study covered IP

8
See Secs 15, 3(f), see also AO 1, Rule IV Sec 4. Section 3(f) provides that Customary Laws refer to a
body of written and/or unwritten rules, usages, customs and practices traditionally and continually
recognized, accepted and observed by respective ICCs/IPs.
9
This study includes two ethnolinguistic groups, Iranun and Teduray Labangian of the Province of
Shariff Kabunsuan of the ARMM.
 Indigenous Mode of Dispute Resolution 95

communities/Indigenous Cultural Communities from selected areas in

Luzon, Visayas and Mindanao. The areas were identified based on:
(1) the existence and continuous observance of indigenous conflict
resolution mechanisms; and (2) the presence or, at the minimum,
limited engagement of the ALG IP Cluster member organization in
the area. The areas covered by the study are as follows:
96 Indigenous Mode of Dispute Resolution
Area Ethno-linguistic ALG - IP Cluster
Group
Ayungon, Negros Karul-anon Legal Assistance Center for Indigenous
Occidental & Filipinos (PANLIPI)
Inablang,
Kabangkalan City
Arakan Valley, Tinananon- PANLIPI
Cotobato Manobo
Baguio City Mixed PANLIPI
Bakun, Benguet Kankanaey-Bago PANLIPI
Barira, Shariff Iranun Sentro ng Alternatibong Lingap Panligal
Kabunsuan (SALIGAN) – Mindanao
Buldon, Shariff
Kabunsuan
Calintaan, Tao-buhid PANLIPI
Occidental Mindoro
Caragan Va. Mansaka Paglilingkod Batas Pangkapatiran
Maragusan, Foundation (PBPF)
Compostela Valley
Claveria, Misamis Higaonon Balay Alternative Legal Advocates for
Oriental Development in Mindanaw (Balaod-
Mindanaw), Inc.
Coron, Palawan Kalamian- Environmental Legal Assistance Center
Tagbanua
Kabankalan City Ati (resettled PANLIPI
(Brgy. Kamang- community)
Kamang)
Kabankalan City Bukidnon PANLIPI
(Brgy.
Kamingawan)
Maragusan Va, Mansaka PBPF
Maragusan,
Compostela Valley
Lake Sebu, South T’boli PANLIPI
Cotobato
Lake Sebu, South Ubo PANLIPI
Cotobato
Magsaysay, Ragatnon PANLIPI
Occidental Mindoro
Miarayon, Bukidnon Talaandig Balaod-Mindanaw
Sablayan, Alangan PANLIPI
Occidental Mindoro Mangyan
Siocon, Zamboanga Subanon Legal Rights and Natural Resources, Inc. –
Kasama sa Kalikasan or Friends of the
Earth Philippines [LRC-KsK/FOEI-Phils] –
Cagayan de Oro Regional Office
Upi, Shariff Teduray- SALIGAN – Mindanao
Kabunsuan Lambangian
 Indigenous Mode of Dispute Resolution 97

Stage two focused on the following: 1) validation of the case studies

in the different areas covered through a research forum with multi-
stakeholders; 2) segregated focus group discussions; and 3)
interviews with the key informants from the focus areas and members
of the bench and bar. A cluster level workshop-analysis was also
conducted in concluding the study.

Conceptual Framework

The end of the twentieth century witnessed a global call for the rule
of law and the reform of the judicial systems in many countries of the
world. Multilateral financial agencies and international aid non-
government organizations (NGOs) made such changes one of their
priorities for their efforts in the developing world. In most countries
across the developing world, profound legal and judicial reforms
were implemented (Santos: 2002:313-52). 10

The Philippine Supreme Court has embarked on an ambitious six-

year judicial reform program known as the "Action Program for
Judicial Reform 2001-2006" (APJR). 11 Working with the Justice
Reform Initiatives Support Project (JURIS), the Alternative Law
Groups (ALG) saw this program as an opportunity for
complementation of efforts towards law reform and empowerment of
the poor for greater access to justice. 12 One of the strategies identified
by the ALGs is the strengthening of ADR mechanisms. This
component intended to give special emphasis on promoting respect
and recognition for IDRM. 13

While rural indigenous communities have long been resolving

conflicts in accordance with their respective customs and traditions,
their full use of IDRM are often hindered by the need to resolve
contradictions inherent within official legal systems. For the IPs, the
national legal systems are limited and limiting, hence, there was a
need to examine: 1) possible areas for interface; and 2) the ability of
indigenous customary law for resolving conflicts to stand alone, and

10
See also Tate and Vallinder (1995).
11
See Justice Reform Initiatives Support Project (JURIS).
12
See ALG Framework for Judicial Reform.
http://www.alternativelawgroups.org/resources.asp?sec=det&id=170
http://www.alternativelawgroups.org/resources.asp?sec=det&id=169
13
Drafted at the early stages of ALG’s involvement in the project, even the formulation of this key
reform issue comes from the framework that mainly “focuses on the official legal and judicial system,
conceived as a unified system, and left out of this consideration the multiplicity of unofficial legal
orderings and indigenous dispute resolution mechanisms and justice systems that had long co-existed
with the official systems many dating back the pre-conquest period.” See also SANTOS 2002.
98 Indigenous Mode of Dispute Resolution

yet be recognized by the mainstream legal system as a legitimate

mode of dispute resolution.

Outline of the Article

This article aims to provide a preview of the research findings and a

glimpse of the journey that was, in uncovering old truths, validating
customs and traditions and discovering pathways towards the future
by revisiting the past.
The study will begin with a brief history of the Philippine Legal
System and the parallel struggle of the pre-conquest justice systems
to survive. It will look into how the latter endured, albeit in varying
degrees, through time. This discussion will also tackle the way that
the highly-centralized Philippine national legal system continues to
utilize and reinforce legal structures and concepts first imposed
during colonial regimes.

At this point, the article will scrutinize seemingly contradictory

provisions of the main legal instruments that provide certain degrees
of recognition of the Indigenous Conflict Resolution Mechanisms and
Indigenous Law.

The study then moves to validate the observation that IDRM and
indigenous legal and justice systems continue to endure in varying
degrees. This portion also explores the various aspects of
accommodations made in resolving conflict alongside IDRM, and the
national legal system. This chapter will highlight several case studies
illustrating varying degrees of interface.

The final part of the paper will attempt to identify formulations that
will address the most urgent need of providing more meaningful
recognition of IDRM and indigenous justice systems. The greatest
challenge at this point is accurately capturing and contextualizing the
demands gathered from the indigenous peoples who participated in
the focus group discussions (FGDs) vis-à-vis the comments and
reminders made by several specialists consulted, and the realities of
policy advocacy. It concludes by seeking ways of moving forward
towards a culturally-sensitive judicial response to the quest for the
recognition of the IDRM and the indigenous justice systems.
 Indigenous Mode of Dispute Resolution 99

Colonization of the Indigenous Lifeworld

After “discovering” the group of islands which would later be called

the Philippines, Spain imposed the Law of Indies. The law did not
only introduce the legal fiction and western concept of jura regalia 14 ,
it also reduced existing justice and legal systems of the non-
hispanized indios and moros to mere customs and traditions. By
doing so, customs and traditions, by law, automatically became a
secondary source of law operating in their laws’ absence and
technically, never in contradiction to it (contra legem). (Fajardo,
2002:35)

Thus began the systematized imposition of hundreds of years of legal

structures and concepts of the colonial regimes. “Spanish colonists
saw little value in the centuries old social systems which have been
evolving within the Philippine archipelago. The Spaniards also saw
little, if any reason to recognize the native’s living law. Instead
indigenous customs and traditions were suppressed if they interfered
with the aspirations of soldiers, priests, entrepreneurs and government
officials.”(Lynch, 1983:459)

It was further observed that the colonial legal systems failed to

acknowledge, appreciate and/or reinforce indigenous norms, laws and
processes. The legal importation did not stop there. Neither was its
implementation limited to those who were baptized or Christianized.
In time, and in the process of “nation-building”, even those groups of
peoples who were largely unconquered 15 and had their own pre-
conquest legal norms, leadership structures and dispute settlement
processes, by legal fiction, were affected by the impositions made
under the bell.

Over a span of three and a half centuries, Lynch noted that subjugated
Filipinos learned to disdain their cultural heritage and to imitate their
colonial masters. The best and most willing imitators were rewarded
with power and privilege. Meanwhile, native traditions and legal
systems slowly withered. Lynch further pointed out that unlike their

14
Jura Regalia literally translates to “royal rights” from the word jura meaning rights and regalia or
royal. The western definition of jura regalia refers to those rights which a king or queen has, by
virtue of his or her prerogative. In Philippine jurisdiction, jura regalia refers to the feudal theory
introduced by Spain that all lands belonged to the Crown. Regalia comes from the Latin word rex,
which means king. Regalian Doctrine, See also 1987 PHILIPPINE CONSTITUTION Sec 2, Art XII.
15
The Bangsa Moro struggle for self-determination is an ongoing struggle for survival, cultural identity
and the right to self-determination. Spanish aggression did not subjugate the Moro people who
remained determined to resist any colonial rule in their homeland.
100 Indigenous Mode of Dispute Resolution

Western counterparts, Muslim missionaries were much more

accommodating 16 to indigenous legal systems. (Lynch:459)

At this point, the colonial legal institutions were established in just

the “civilized” parts of the archipelago, where the Christianized
Indios are located. Meanwhile, those who were branded as “infiels,”
“paganos” and “moros” 17 managed to regulate their social
interactions such as marriage, inheritance and land contracts, as well
as resolve their conflicts according to their culture, customs and
traditions.

While the Supreme Court in the case of Cruz vs. NCIP 18 , has upheld
the constitutionality of the IPRA, the judicial doctrine in relation to
indigenous peoples with more lasting impressions are those in the
cases of Rubi vs. Provincial Board 19 and People vs. Cayat 20 .

In Rubi vs. Provincial Board, the High Court declared through Justice
George Malcolm that:

“In resume therefore, the Legislature and the

Judiciary, inferentially, and different executive
officials, specifically, join the proposition that
the term “non-Christian” refers, not to religious
belief, but, in a way, to geographical area, and,
more directly, to natives of the Philippine
Islands of a low grade of civilization, usually
living in tribal relationship apart from settled
communities.” (emphasis supplied)

In this case, the Court, speaking from the point of view of the State’s
exercise of police power, justified the Resolution of the Provincial
Board of Mindoro - placing the indigenous inhabitants in a
reservation - as a form of protection and introduction of civilized
customs to the “non-Christian” Manguianes. The High Court
considered the action of the Board as a valid act of the State, as the
indigenous peoples were considered unable to attend to themselves
due to ignorance and being uncivilized.
16
An observation affirmed by this study. The full research covers two case studies of indigenous justice
systems within the Autonomous Region in Muslim Mindanao. See also, case studies of Teduray and
Lambangian in Upi, Shariff Kabunsuan, as well as Barira and Buldon of the same province.
17
The terms used by the Spanish conquistadores
18
347 SCRA 128 (2000)
19
39 Phil 660, G.R. No. 14078 (1919)
20
68 Phil 12 (1939)
 Indigenous Mode of Dispute Resolution 101

Another discriminating misrepresentation of ICC/IPs was

immortalized in the case of People vs. Cayat where the “validity” of
treating IPs as a distinct group or class for purposes of the equal
protection clause was justified. The Court stated that such
classification is unquestionably reasonable to meet the peculiar
conditions existing in the non-Christian tribes then. Rubi and Cayat
both asserted that there could be no true equality before the law
between non-Christians and Christians because of the former’s
degree of culture.

The Philippine Republic “born” in 1946 inherited the hybrid Spanish-

North American system. Fernandez posits that the highly-centralized
form of government that was imposed by the colonial powers is still
very much in place. After independence however, this type of
government has persisted partly out of institutional inertia, partly
because of the successful political conditioning of the ruling elite, and
partly because a centralized government is appropriate, if not
indispensable, to the requirements of post-colonial development.
(Fernandez, 1980:385)

Meanwhile, the colonial and neo-colonial experiences heavily

impinged upon the growth and development of IDRM, indigenous
justice systems and other indigenous institutions. Resilient as the
peoples who are the bearers of these systems and processes, IDRM -
that was reduced into “norms and custom” and practically considered
in contra legem – evolved and endured. Its bearers bore labels
ranging from paganos, infiels and moros, which slowly shifted to
“non-christian tribes” 21 , and then to “national cultural minorities”.
It was only recently that the term “indigenous cultural
communities” 22 and “indigenous peoples” 23 became the norm.
(Leonen, 2007:46).

Even prior to the legislative and policy paradigm shifts occurring

after the enactment of IPRA, a felt need of having to reorient the
21
‘Non-Christian’ is an awkward and unsatisfactory expression. Legislative, judicial and executive
authority has held that the term ‘non-Christian’ should not be given a literal meaning or a religious
signification, but that it was intended to relate to degree of civilization. This has been the uniform
construction of executive officials who have been called upon to interpret and enforce the law. The
term ‘non-Christian’ refers not to religious belief, but in a way to geographical area, and more directly
to natives of the Philippine Islands of a low grade of civilization. See also, Com. Act No. 141 or the
Public Land Act. Sec 48 (c) provides rights to “national cultural minorities”.
22
Starting from the 1987 Constitution, See Art. II, Sec. 22
23
RA 8371 formally recognized indigenous cultural communities as “indigenous peoples”. For
purposes of this research, the term indigenous peoples covers those contemplated by law; specifically
, RA 8371 and RA 9054. RA 9054 explicitly includes the Bangsa Moro peoples in its definition of
indigenous cultural communities.
102 Indigenous Mode of Dispute Resolution

national legal systems and make it more reflective of indigenous

juristic elements, started emanating. (Lynch:457). This is not to say
that the rules and institutions adopted from foreign jurisdictions are
not suitable to the Filipinos’ needs as a people; it is merely to
emphasize that Philippine law is mostly of foreign origin or
derivation, and has not been drawn from indigenous sources.

Therefore, the felt presence of the so-called majority–minority divide

in the appreciation of national legal systems versus various forms of
indigenous justice systems is not surprising. While the labels may be
slowly fading out, the stigma associated with indigenous cultural
norms and practices still remain.

Legal Pathways and/or Roadblocks to Justice?

The constitutional recognition of customary law should be construed

as one of the more symbolic responses in correcting a grave historical
injustice. The Constitution currently provides that “(t)he State
recognizes and promotes the rights of indigenous cultural
communities within the framework of national unity and
development.” 24 This provision is further affirmed where the state
guarantees to protect the rights of indigenous cultural communities to
their ancestral lands to ensure their economic, social, and cultural
well-being. 25 Providing further that ”(t)he State shall recognize,
respect and protect the rights of indigenous cultural communities to
preserve and develop their cultures, traditions and institutions. It shall
consider these rights in the formulation of national plans and
policies.” 26

These affirmations were followed by making room for IDRM at the

Barangay Level through the BJS 27 where the law mandates that
customs and traditions of indigenous cultural communities shall be
applied in settling disputes between members of the cultural
communities. 28

IPRA is predominantly viewed as the law recognizing IPs rights to

ancestral lands and domains. IPRA is more than just an Ancestral
Domains Law, it also clearly provides for the primacy of customary

24
See Art.I, Sec. 22 of the 1987 Philippine Constitution.
25
See Art.XII, Sec.5 of the 1987 Philippine Constitution.
26
See Art.XIV, Sec.17 of the 1987 Philippine Constitution.
27
See Sec 399, 408 of RA 7160.
28
See Sec 412 (c) of RA 7160.
 Indigenous Mode of Dispute Resolution 103

law, as it mandates that disputes involving indigenous peoples are to

be settled using customary law and practices. 29

A more institutionalized recognition is provided for in the Organic

Act for the Autonomous Region in Muslim Mindanao (ARMM). RA
9054 creates a system of tribal courts for the indigenous peoples in
the ARMM. Said system may include a tribal appellate court, as
determined by the Regional Legislative Assembly (RLA), which is
also mandated to define the composition and jurisdiction of the said
tribal courts. The law recognizes the power of these tribal courts to
determine, settle, and decide controversies and enforce decisions
involving personal and family and property rights of members of the
indigenous cultural community concerned in accordance with their
own tribal codes. Furthermore, the law recognizes the exclusive
jurisdiction of these tribal courts over crimes committed by members
of indigenous cultural communities where the imposable penalty as
prescribed by the Revised Penal Code or other pertinent law does not
exceed imprisonment of six (6) years or a fine not exceeding Fifty
thousand pesos (P50,000.00) or both such imprisonment and fine and
where the offended party or parties are also members of the
indigenous cultural community concerned. 30

“O heavenly spirits, may you guide the conscience and hearts

of both contending parties so they will stick to the truth. And,
O unseen spirits, may you disturb the conscience of those
who attempt to lie, so they will not veer away from the truth.”
- -Opening Petik

The Indigenous Dispute Resolution Process

In IDRM, the process and its name speak for itself. Kalamian
Tagbanuas call it pagkeresen which roughly translates to
conversation/discussion/talk. The Kankanaey and Bago peoples of
Bakun call it Tongtong which when translated refers to a dialogue.
The Teduray Lambangian refers to the process as setiyawan meaning
to adjudicate together. 31 For the IDMR/IJS, the process, by any other

29
See Sec 65 RA 7381.
30
See Art. VIII, Sec 19 of RA 9054.
31
There are also many existing indigenous justice systems that have no formal or common names but are
still very much in place and in use. Pagkeresen among the Tagbanuas of Coron in Palawan, Husay
among the Higaonons and Talaandigs of Misamis Oriental and Bukidnon, Kukuman among the
Manobos of Arakan Valley, Iskukom among the T’bolis of Lake Sebu, Tiwayan among the Tedurays
of Maguindanoa and Gukom among the Subanons of Zamboanga.
104 Indigenous Mode of Dispute Resolution

name, remains to be generally non-adversarial, non-confrontational

and participatory.

The process is generally initiated by a complainant or an offended

party approaching an elder to report an offense and seek resolution.
The elder confers with members of the council of elders and calls for
a dialogue. A date or a given time is set for the actual dialogue, and
the involved parties are notified.

The process commonly begins with an opening ceremony, ritual or

prayer. The mediating Talaandig datus 32 for instance, pray to
Magbabaya to ask for guidance and invite the spirits of the laas or
ancestors to provide wisdom in resolving the conflict. A gukom leads
the pangimunag or opening ritual for cases. 33

On the other hand, the tongtong 34 is opened through a prayer or petik

led by an elder or one of the Papangoan. Offering a drop of tapuey,
the traditional rice wine in the place, the elder chants the petik that
asks the heavenly spirits to guide the conscience and the hearts of the
contending parties so the truth may come out. Over the years,
particularly after the introduction of Christianity in the community,
this opening ritual has undergone some changes. In the past, the
prayer was led by a senior member of the council of elders, who can
either be a male or a female. Now, it is jointly led by a senior member
of the council of elders and representatives of the various religious
groups attending the tongtong. 35 The petik is now carried out with an
invocation of the traditional prayer by a senior elder, and a Christian
prayer led by representatives of religious groups.

The opening ritual or its equivalent is common to all IDRM/IJS

documented. The closing ritual however, does not necessarily apply,
for some processes. In the case of the Tiwayan System of Conflict
Resolution, 36 the ritual called Iném Kénugéw is performed only when
there is a perceived need to finally settle any ill feelings remaining
between the parties. After the ritual, the relationship between the two
is considered restored. The same is true for the Higaonon tribe of
Misamis Oriental. A singampo pasalamat ritual is performed to thank
the spirits for their guidance and presence during the process of

32
Claveria, Misamis Oriental
33
A Timuay may endorse a case to the Gukom. A Gulang Gukom (chief justice) then convenes the
Timuays of the seven rivers. The pangimuan is conducted by a Gukom before the process starts.
34
Bakun, Benguet
35
True for both Bakun, Benguet and the tongtongs mediated by the Metro Baguio Tribal Elders and
Leaders Assembly.
36
Upi, Shariff Kabunsuan
 Indigenous Mode of Dispute Resolution 105

conflict resolution. The ritual is also performed to seal the agreement

and bind the parties to the agreement. The closing petik is also
considered a cleansing ritual; an elder chants a closing prayer that
asks the spirits to restore harmonious community relations, which can
only be done if contending parties remove all hard feelings in their
hearts so that stability and prosperity reigns, as they resume normal
lives (Arquiza ed., 2005: 45). For the Mangyans 37 of Occidental
Mindoro, on the other hand, the closing prayer is not only for the
purpose stated above, but also a prayer of thanksgiving; praising the
heavenly spirits for their guidance which ultimately helped achieve a
peaceful resolution.

There are also IDRM where settlement agreements are not only
sealed by prayers but with ceremonials gatherings. For the Iranun 38
of Barira and Buldon, Shariff Kabunsuan, when parties to the conflict
are able to reach an agreement or amicable settlement, there are
prayers and ceremonial gatherings to seal the agreement and celebrate
the reconciliation. The different gatherings common among the
Iranun include: kapangangawid, kapapamanikan, and kandori.
Kapangangawid involves the payment of moral, physical and
material damages to the offended party while kapapamanikan
requires family members and close relatives of the offending party to
go to the house of the offended party as a manifestation of acceptance
of guilt or submission to appease the offended party and his/her
relatives. In both gatherings, kandori, which is a thanksgiving ritual
involving the serving of food and drinks, may be performed; it may
also be held separately from the kapangangawid and kapapamanikan.

The tongtong in Bakun and the tongtong facilitated by MBETELA

also observe closing ceremonies for high impact cases. Note
however, that there are cases and negotiations where the parties and
participants are not allowed to eat until a settlement is had. The
concluding ritual usually requires the slaughtering and cooking of a
pig or cow, and the parties and witnesses partake of a meal together,
signifying the end of the dispute or hostilities.

37
The study documented the Indigenous Dispute Resolution Mechanisms and Indigenous Justice System
of three ethno-linguistic groups namely, Tagabuhid, Alangan and Ragatnon.
38
Although largely based on Iranun customary laws and traditions, the local government unit and its
system of governance is also a factor in the administration of justice by the JUMPOC. This is evident
in the many similarities between the Katarungang Pambarangay system and the conflict resolution
process of the JUMPOC, as mentioned above. This may be explained by the fact that the JUMPOC
was created through the initiative of the local government unit. Another undeniable source of
influence is the Muslim faith which is central in the Iranun culture.
106 Indigenous Mode of Dispute Resolution

Nature and Venue of the IDRM/IJS

As a general rule, the dispute resolution process, being participatory

and communal in nature, is open to all. The aggrieved, the offender,
their families, women, children and all other concerned members of
the community may participate in the settlement process. For the
Marikudo of Negros however, the sessions are limited to contending
individuals and members of the tribal council. In Mindoro
Occidental, the Alangan prefer closed-door sessions. The Tiwayan
System of Conflict Resolution is generally open to all except when
the case calls for a Séékémén which is a swift and confidential
settlement of sensitive or delicate cases [i.e. most, if not all, involve
offenses that are sexual in nature]. Only the assigned Kefedewan 39
and the parties directly involved (i.e. the alleged perpetrator and the
complainant/victim) are present. 40 In Siocon, despite the fact that
women and children are welcome to attend, the participation is
usually limited to their men.

There are no designated mediation centers or courts of justice for

purposes of the IDR/IJS. The Subanon calls their tribal house Baloy
Nog Gukom. 41 Most of the focus areas however, do not have fixed
venues. Usually the venue for the conflict resolution process is the
house of the Datu, Tribal Chieftain or any member of the Council of
Elders. In the past, the venue for tongtong is an open space where the
hearing and resolution process is in full view of the main participants
and the general public. However, with the advent of barangay halls 42
or government structures, the tongtong is now held in these places.

Peace of mind is the absence of conflict in the community,

whether physical or emotional. This is the basis for justice
and development for all and not the satisfaction of
one person or a few people in the community.
-Article 1, Section 7, Ukit Notion of Justice

The adherence, albeit to varying degrees, to the IDRM/IJS - despite

the existence of BJS, the courts of justice and the influx of influences
from other cultures - is generally attributed to the fact that these

39
The Kefedewans are the administrators of the Tiwayan or the conflict settlement process or tribal
judicial procedure.
40
It is forbidden for any of the parties to reveal the details of the settlement. There will be a fine of
P1,500.00 imposed on those who will violate the confidential nature of said proceedings.
41
Of the 18 IDR/IJS case studies, three focus areas mentioned the exclusive use of the tribal house.
These are Gubatnon, Manobo and Subanon.
42
The barangay hall is also becoming the preferred venue for the Talaandig and Higaonon.
 Indigenous Mode of Dispute Resolution 107

systems are effective in dispensing justice. Justice, once served,

ultimately restores peace and harmony in the community.

This study is very conscious and careful of falling into the trap of
overly generalizing observations and findings from the gathered data.
But for purposes of emphasizing a trend worth noting, 14 of 18
IDRM/IJS documented case studies heavily hinges the notion and
concept of justice to the restoration of peace and harmony within and
amongst communities. Justice is equated to concepts like peace,
harmony, contentment, order and common good.
The study also notes that there are IDRM/IJS that anchors their sense
of justice on the protection of one’s dignity and alleviation of the
injury caused to the victims and their families. 43 The Karulanons of
Negros on the other hand, value the sense of satisfaction and
contentment of both parties, while the Kalamian Tagbanwas of Coron
tend to link their sense of justice to retribution, punishment and
reward.

Despite these notions, the prevailing element and institutional

foundation of these IDRM/IJS is still driven by the need to strengthen
community relationships and instill good values and norms. Kefiyo
fedew 44 or peace of mind is defined as “a state of mind and physical
being of an individual which is free of any problem be it emotional or
physical.” 45 Thus, conflicts are always resolved through “win-win
solutions”, where both parties are satisfied and have no ill feelings.
Most of the IDRM documented have no appeals process. In fact,
only the Tiwayan System of Conflict Resolution provides for a
baruwat where a previously-settled case may be reopened before
another kefedewan. 46 While there is strictly no appeal in the Subanon
Justice System, they have the Gukom of Seven Rivers 47 , the highest
tribunal of the Subanon that convenes only when the matters to be
settled involve disputes which are of general interest to the Subanons.

Then and now, the main purpose of IJS has been the maintenance of
stability, peace and harmony in the community. To this date despite
the challenges, the various IDRM/IJS covered still serves its purpose

43
Mandaya and Mansaka of Compostela Valley
44
Good state of mind
45
See Section 1, Article I, Chapter I, Ukit.
46
Baruwat = Form of appeal
47
The Highest Tribunal of the Subanon in Siocon, Zamboanga. This Gukom convenes only when the
matters to be settled involve disputes which are of general interest to the Subanons. Also, when the
Timuay of a pigbogolalan endorses a case to the Gukom of Seven Rivers because he knows that he
cannot settle the controversy/conflict
within his jurisdiction. Further, the Gukom will lead the settlement when it involves conflict between
Timuays of different pigbogolalan.
108 Indigenous Mode of Dispute Resolution

– justice is still served - for the peoples who resort to it and their
communities.

Nature of Crimes and the Penalty System

The IDMR/IJS takes cognizance of all types of cases. By and large,

there is no distinction between civil and criminal cases. Thus,
offenses are appreciated not solely in the context of the offender and
offended, but also within the community and, if inter-tribal, between
communities.

The strong sense of community and territory is closely connected to

the appreciation of the impact a conflict creates on the harmony and
sense of stability and peace of the community, as a whole. Thus,
disputes are generally always seen in a personal context (offender-
offended) and in the context of the community. As a consequence,
when an offense or crime is committed against a member of a
community, it is usually treated as if it was committed against the
whole community, not only against a particular individual. In the
case of the Teduray-Lambangian, this is reflected in their penalty
system where the amount imposed as penalty is given (in most cases)
not only to the offended party but the Fénuwo (village) as well. The
amount given to the Fénuwo is further divided between the Kéféduan
(tribal justices) and the Ingéd (whole tribe or ancestral domain).

This observation is true for all the focus areas except one. For the
Manobos of Arakan Valley, any offense committed against an
individual is an offense committed solely against the offended party.
Committing acts of discrimination (oson) against any tribe member is
the only crime they consider as having been committed against the
whole tribe. 48

This communal perspective is also seen as the reason why conflicts

are not strictly defined. There are no definitive lists that provides for
specific offenses with corresponding penalties. Rather, “the offenses
are evaluated based on threats to or infringements on the life,

48
Refers to remarks or actions made either by a Manobo to another Manobo member or a non-IP to a
Manobo that caused embarrassment to the offended. Based on customary law, the offended party, if
not appeased, can kill the offender. The resolution process, therefore, concentrates on discussing the
appropriate penalty to avoid any killing. An example of this case involves a former City Councilor of
Kidapawan who was quoted in writing by a columnist of a local paper uttering discriminatory remarks
against the tribe during the last elections. The tribe filed a case with the NCIP against the City
Councilor and the local journalist, and moved for the application of customary law in the resolution of
the case. The NCIP upheld the motion in its entirety.
 Indigenous Mode of Dispute Resolution 109

property and dignity of the offended party or community.” 49 There

are emerging forms of documentation 50 , and semi-assimilated and
highly assimilated focus areas loosely refer to the offenses using
crimes enumerated in the Revised Penal Code.

The Kitab Keadatan or body of customary laws of the Teduray and

Lambangian peoples is an exception to the general observation. It is
composed of three major works: 1) the Ukit or Constitution; 2) the
Tegudon or Creed, and 3) the Dowoy or penal laws. 51 The Kayang
Bala covers the range of penalties set by the Tegudon. Although this
serves as the primary reference regarding penalties, there are other
bases that may be considered in setting the exact amount of penalty to
be imposed by a Kefedewan. The sanction and/or penalty imposed
are set in the Tiwayan or settlement of conflict. After which, it is the
responsibility of the entire community to enforce the penalty
(Arquiza, ed:2007).

Similar to the indigenous notion of crimes and offenses, there are

also, generally, no fixed sanctions. 52 Penalties are still mostly
determined based on the weight or severity of the offense as
perceived by the offended party and the community. Precedents and
penalties, as listed, are generally only of persuasive value. The
process described below is basically the same process observed in the
focus areas covered:

“At all times, the penalties imposed are defined

based on a case-specific situation. The
Limpong ng Mangkatadongs (Council of
Elders) who administers the settlement and

49
As narrated to PBPF in the FGD conducted for Mandaya and Mansaka. This observation is also true
for almost all other focus areas except as listed and discussed above.
50
Anhtropologist Antoon Postma who is known to have extensively studied the culture of the Hanunuo
tribe in Oriental Mindoro came up with a four-volume publication entitled Kulturang Mangyan in
2005. In the fourth volume, he wrote about the Hanunuo’s justice system and listed 164 offenses or
crimes punishable under the tribe’s customary law. Such offenses cover all sorts of behavior that
pertain to conduct of relationship with family members, relatives, neighbors and tribal leaders. They
range from petty to serious offenses like rape and murder.
All three tribes confirmed Postma’s listing. One of the FGD participants even said that he did not
realize that they had such a long list.
51
Dowoy: Teduray and Lambangian penal laws. Over time, there have been certain adjustments made in
the Dowoy, especially in the area of penalties imposed. These penalties traditionally took the form of
the giving of goods (e.g. gong, sundang) to the aggrieved party. However, since most of these goods
are now rather hard to find, the penalties were converted to cash equivalents. For example, the
equivalent of Mérémoto Tamuk ranges from P3,000.00 and above; while for Séékét, it is set below
P3,000.00.
52
In the case of the Teduray Lambangian the offenses, penalty and sanctions where documented over
time in their efforts to strengthen Timuay Justice and Governance. In partnership with support groups
and non-government organizations, a project dubbed as Community Access to Justice through
Recognition of Indigenous Justice System was launched. This initiative resulted in the documentation
of the Timuay Justice and Governance, with a Kefedewan Training Module and Handbook.
110 Indigenous Mode of Dispute Resolution

judgment processes are only mediators or

arbitrators of justice. The extent of sanctions to
be imposed is articulated first by the victims
and their families. The Limpong then
communicates the demands of the victim to the
family of the offender through a designated
negotiator called “pilipiti”. In cases where the
family of the offending party can not afford to
comply with all the demands made, the
Limpong ng Mangkatadong actually
contributes to fully pay off the demand. This
assumption of responsibility by the Limpong
ng Mangkatadong affirms the community’s
view of collective responsibility. The practice
has been carried out since time immemorial to
strengthen kinship and ensure cohesion among
members of the tribe.”

The Subanons’ notion of retribution and penalty best describes the

general notion observed and affirmed in this study. The case study in
Siocon affirmed that Subanons prefer reconciliation to retribution.
Harmony within the community comes first. For them, the concept of
social cohesion and restorative justice are at par. As one Timuay said,
for the Subanons, the principle is “Palita ang Kalinaw” (buy peace).

Most of the IDRM/IJS documented do not impose capital

punishment. Six of the focus areas even revealed that they have long
abolished the said form of penalty. These communities arrived at the
decision to abolish the penalty on various grounds but the two main
reasons are: (1) Catholic and Christian teachings; and (2) prohibition
by the State.

The study encountered two focus areas that have not abolished the
penalty in the sense that it is still there, but it has not been imposed
for a very long time. 53 There were also areas that are careful not
discuss it, in view of the sanctity of the process. Suffice it to say that
the few focus areas concerned observe several internal processes

53
“Bubuwan” for the Subanon means a cage. This is similar to a fish cage put in the sea used to trap fish.
The culprits, as in the case of incest, will both be placed in the bubuwan and before sunrise they will
be brought to the sea and submerged to death. This death execution happened once in the history of
the Subanons in the person of Tumonglon and Putian. This was an incest case. Both of them were
found guilty and they were subjected to death by drowning through bubuwan. As narrated by Timuay
Nanding for the case study.
 Indigenous Mode of Dispute Resolution 111

before imposing the penalty. 54 In case, for instance, of Timuay

Justice and Governance:

Fetindegon Turos – Literally translated

as death penalty, this is the highest form
of penalty that may be imposed on a
person. This is imposed when the
offender may no longer be corrected
through the payment of property or cash.
Thus, the life of the offender shall be
taken from him as payment. Although in
actual practice, any one with good record
in the village can stop the execution.
Said person must then be ready to take
custody of the offender. A ceremonial
execution of the declaration, referred to
as bangun, shall follow.

Another ticklish issue is the perception of some people that some of

the IJS impose “…excessive fines, and cruel, degrading or inhuman
punishment.” 55 Examples include the imposition of bordon 56 , a form
of penalty where the offender is lashed with a rattan cane, and
panglao 57 , a sanction where the offender is humiliated in front of
fellow villagers by undergoing an ordeal.

Let it be emphasized that the penalties described were part of the data
gathered from the study and there is no attempt on the part of the

54
The execution of an offender who has committed a crime considered heinous by the
Mandaya/Mansaka communities is considered the highest form of restitution for crimes committed
against life and dignity. The execution of an offender and all other sanctions are not viewed as a
punishment for an offense/crime committed. From their perspective, it is a matter of “giving back
what is wrongfully taken”. Under this principle, the family of the offender/s has to give its consent to
give as restitution for a wrongfully taken life, the life of a member of the family who seriously
committed an offense. However, the family of the offender has recourse in the administration of
Mandaya/Mnsaka traditional justice through an appeal mechanism that exists to seek a reversal of
judgment. This can be granted but only given the following circumstances: (1) When the offender
shows sincere remorse for the crime/s committed; and (2) When the offender, upon evaluation and
judgment of the Limpong ng Mangkatadong, shows a possibility for transformation. Reversing an
execution judgment is not seen as a move to lower the sanction for a particular serious crime. Rather,
it happens only as shown above - when a person is willing to begin life anew by undergoing a process
of remorse and transformation. In the eyes of the Limpong, this, in a sense, allows the offender to give
back what he has taken.

55
See Sec. 72 of IPRA, IR
56
Bordon and Panglao are part of the penalty system of the Calamian Tagbanuas of Coron, Palawan.
57
In Banuang Daan and Cabugao, the offender is made to squat with a two-foot bamboo pole resting at
the back of his knees to attract ants. A more benign but no less humiliating form of panglao is
practiced in other villages such as Malawig, Buenavista and Tara. Here, the offender’s feet are
separated by a wooden clamp and he is made to squat for several hours.
112 Indigenous Mode of Dispute Resolution

cluster to evaluate the same under the standards of penalties imposed

under the national justice system. Suffice it to say that the penalties
meted out are part of a complex process inherent and unique to the
existing IJS studied. They also stem from a justice system that knows
how to value life, peace and harmony.

BJS borrowed and adopted “mediation” from the indigenous

conflict resolution systems of all indigenous peoples
in the country, and probably in the whole world.

- Datu Veloso Suhat 58

Supreme Datu, Arakan Valley,
Kidapawan, No. Cotobato

Areas of Interface

The various IDRM/IJS managed to survive despite the lack of state

recognition for its validity. 59 The advent of IPRA provided an
impetus for the State to admit the existence of more than “one” law or
legal system in the same geopolitical space. 60 This phenomenon is
generally referred to as legal pluralism. Accordingly, legal pluralism
is created in several situations, among which are:

One is a situation of Colonialism, in

which a Colonial government imposes a
new regulation in a territory ruled already
by previous authorities, norms and
proceedings. So, some sectors of the
population or some areas of the social life
continue to be regulated by the old legal
system. Legal pluralism also exists in the
contexts of wars, revolutions, and
processes of fast modernization, where
the old legal system and the new coexist
for a certain period. Legal pluralism may
occur too where indigenous peoples or

58
Datu Veloso Suhat served as one of the key informants in the conduct of the research amongst the
Manobo in Arakan Valley.
59
See discussion on the two perspectives on dealing with legal pluralism in Anne Griffith’s Customary
Law in a Transnational World: Legal Pluralism Revisited for Conference on Customary Law in
Polynesia, 12th October, 2004.
60
The theory of legal pluralism “has become a major theme in socio-legal studies. However, under this
very broad denomination, one can identify many different trends which share little but the very basic
idea that law is much more than state law.”
 Indigenous Mode of Dispute Resolution 113

ethnic minorities co-exist with an ethnic

majority that imposes a “national legal
system”.(Fajardo:39) 61

The Philippine experience falls within the purview of two identified

situations. Legal pluralism, although not reflected and recognized by
state law, thrived and existed. The Supreme Court itself even
recognized the existence of the interface between national law and
customary law in the case of Pitog vs. People. 62

The coexistence of different systems of rules at the same time, in the

same geopolitical space, may produce conflicts of inter-legality. At
this point, the study after validating the continuous existence of
IDRM/IJS looks into the varying shades and spaces of interface and
the negotiated accommodations made on the ground.

The most common aspect of interface documented is when a

barangay council and a Lupon are composed of the same tribal
leaders holding traditional leadership posts. In conflict resolutions
however, tribal leaders cum barangay council members generally
prefer the use of customary law in settling disputes. 63 If there is any
modification in the process, it is the adoption of the documentation
requirement of the BJS. The Kankanaey–Bago and Karulanon
however, give contending parties the option not to have their case
recorded and reported. It has likewise been reported that migrant
non-IPs in the area prefer to have their conflicts settled using
customary law.

Meanwhile in Mindoro, the focus areas reported that no aspect of

their IDRM/IJS has been interfaced with the BJS. The Tao-Buhid has
followed and adopted the documentation requirement of the BJS. For
its leaders, documentation of conflict resolution proceedings will help
form a repository of knowledge that will be passed on to the next
generations of Mangyans. The Alangan and Gubatnon tribes have not
started documenting their settled cases. They, however, expressed
openness to adopting the documentation requirement since they both
have an indigenous writing system.

61
Santos Boaventura de Sousa as quoted in Raquel Yrigoyen Fajardo, Pathways to Justice, http:
alertanet.org
62
Pitog vs. People G.R. # 76593, 11 October 1990
63
This particular type of interface was observed among the Calamian Tagbanua, Higaonon, Bukidnon,
Karulanon, Talandig, Teduray-Lambangian and Subanons.
114 Indigenous Mode of Dispute Resolution

The case of the Mandayas in Caragan Valley is a case where the BJS
in place is fully interfaced with the Mandaya’s IDRM/IJS. Although,
in a sense it would be more accurate to say that the Mandaya’s
IDRM/IJS subsumed the BJS, since all disputes brought to the
barangays are referred to the Limpong ng Mangkatadong, who are
likewise members of the Lupong Tagapamayapa. Despite the dual
role, the Limpong/Lupon applies their customary law and nothing
else. 64

The T’boli and Ubo of Lake Sebu have their own unique way of
interfacing. The mix allows them to settle disputes using their own
customary law while acknowledging the presence of a government
structure in their area. Aside from adopting the recording and
reporting requirements of the BJS, the tribal council submits a report
to the Lupon. The Lupon simply approves and files the report. In
Bakun, five of the seven 65 barangays instituted a process where every
complainant is required to register or file his/her case to the Lupon.
After registration, the complainant is asked to choose between BJS
and tongtong as the means for resolving the case. This arrangement
was borne out of the need to diffuse tensions between the conflicting
systems. Initially, in the early part of the BJS implementation, some
of those appointed as members of the Lupon were elders. These
elders, however, felt uncomfortable with such designation because
they were stripped of the voice of a moralist that they assume when
they act as mediators in the tongtong process.

Another set up was tested, this time Lupon members participate in the
tongtong as representatives of the BJS. Sometimes a Lupon member
presides over the tongtong and the resolution process is counted as an
accomplishment of the Lupon. This created confusion and
discomfort between Lupon members and members of the council of
elders. The confusion ended with the current set up. 66

The harmonization created by the two remaining villages is several

notches higher. In 1999, Brgy. Ampusungan created an Indigenous

64
See also the Tale of Two Valleys, case study PBPF. The prevalent use of traditional mediation/dispute
resolution processes in the context of the Barangay justice system principally stems from the
community’s familiarity with customary practices. This is a natural tendency, considering the fact
that residents of the area are dominantly IP (Mandaya). The elders view the primacy of traditional
processes not as an interface of two mechanisms, but as a recognition of the tribe’s collective rights to
self-governance and cultural integrity.
65
The two remaining villages, Brgy. Ampusunga and Dalipey, decided to marry the tongtong and the
BJS.
66
Parties to the agreement can choose not to have the settlement of their case documented so that no
record or proof of the wrongdoing exists. As earlier discussed, any record of a wrongdoing is a stigma
that will forever be attached to the family of the offender.
 Indigenous Mode of Dispute Resolution 115

Council of Elders. The council filed a resolution asking it to officially

recognize them as mediators and that any decision they reached using
the tongtong process shall be considered as official and final. Such
resolution was upheld by the municipal government (Arquiza
ed.:2005)

The Joint Ulama Municipal Peace and Order Council

[JUMPOC] 67 harmonizes the Iranun’s IDRM/IJS, Shari’a law and
the BJS or barangay justice system. Such being the case, the
decisions made and the processes used are largely based on the
Qur’an and hadiths/ahadith 68 as sources of the Shari’a law.
Customary laws and traditions are also consulted and considered.
The penalties set for each of the offenses are based on customary
law or Shari’a law or both. JUMPOC has three levels: barangay,
district and municipal. The barangay level has original
jurisdiction over the cases. This however is not exclusive; the
municipal level can take cognizance of all cases brought before it.
As a general rule however, the municipal level JUMPOC requires
an endorsement from the barangay and district level JUMPOC.
The incorporation of the indigenous systems in the barangay and
municipal structures has generally resulted in a more peaceful
community. Justice has become accessible to the Iranun peoples
of Barira and Buldon. Regular courts are in Parang,
Maguindanao or in Cotabato City. Getting there can be difficult
and time-consuming, especially for rural folk who may want to
save the money for public transportation for some other more
basic needs of the family, or to use their time for income-earning
activities. (SALIGAN: 2005)
Arakan Valley, Barira, Buldon and Caragan Valley, the focus
sites, are unheard of by many. It would be easy to attribute the
continued existence of IDRM and IJS to the fact that these are
rural indigenous communities with their indigenous systems,
practices, and structures relatively intact. This study however,
also managed to document an interfaced assembly of elders and
leaders based in Baguio City.
The MBTELA was borne out of an urgent need and call to end
hostilities that had all the makings of a tribal war. Sometime in the

67
The JUMPOC of Barira and Buldon, Shariff Kabunsuan are surviving offshoots of a 1996 provincial
government mandate to create a Task Force Kalilintad in every municipality. Aside from being a
conflict resolution body, JUMPOC primarily aims to propagate Islamic teachings and peace. The
council likewise conducts Arabic writing lessons while it works to promote and preserve Iranun
Indigenous culture.
68
The collection of traditions and sayings of the Prophet Muhammad
116 Indigenous Mode of Dispute Resolution

1980s, several Baguio based tribal elders from various ethno-

linguistic tribes of the Cordilleras started an anti-tribal war campaign.

In 1984, a conflict between the Sumadel and Lubuagan 69 tribes of

Kalinga erupted. Violence and clashes, resulting in several revenge
killings spilt over to Baguio City. To prevent further bloodshed and
an escalation of a full-scale tribal war, where no one is spared from
the revenge, MBETELA members stepped in. They invited
representatives from both Sumadel and Lubuagan to a dialogue.
Elders from both factions were determined to see the end of the
clashes particularly in Baguio City. Most members of the tribes who
were in the city were either students or workers/laborers. Utmost
care was taken to prevent the escalation of a full-scale tribal war. The
dialogue started at 8 o’clock in the morning, and after almost twelve
heated hours, a peace pact was adopted between the Sumadel and
Lubuagan. To this day, no violence has ever erupted between the two
Kalinga tribes.

Since then, MBETELA slowly evolved into an assembly of skilled

elders and leaders acting as a conflict resolution conduit from time to
time. It was officially registered with the Securities and Exchange
Commission in 2003. Due to its vast experience in assisting or
facilitating disputes between and among different communities, the
MBETELA has distinguished itself not only in Metro Baguio but
within their Cordillera-wide jurisdiction without borders.

MBETELA has perfected the art of creative dismissals. Of the 19

focus areas, the cases handled by MBETELA are the ones 70 that
frequently brush with the other pillars of the national justice system
such that:

In criminal cases wherein the police are

called to investigate and cases are being
readied to be filed, dialogues are
usually called before a case is filed with
the Prosecutor’s Office or the Court, as
the case may be. In instances where a
case has already been filed, dialogues
are still called and settlement between
the parties could still be had. In these
cases, the offended party or his family
69
Both Sumadel and Lubuagan are ilis (municipalities) of the province of Kalinga.
70
The Iranuns and Manobos interviewed for the study likewise mentioned instances of filing Affidavits
of Desistance.
 Indigenous Mode of Dispute Resolution 117

will execute an Affidavit of Desistance

so that the case will no longer be filed
by the Prosecutor or it will be used as a
basis for a Motion to Dismiss to
facilitate the dismissal of the case.
These instances are called “creative
dismissals”. It was noted that the filing
of cases before entering into dialogue is
sometimes used as a bargaining tool to
get a better settlement. There are
likewise instances when even the
Courts have given the parties time to
settle the case before proceeding. In
these dismissals, however, the reason or
basis given is that the offended party is
no longer interested in pursuing the
case and not because the case was
settled through the customary justice
system. 71

Incongruent Justice Systems

The study has documented various illustrations of spaces and

loopholes where the IJS and National Legal System meet, 72 match 73
and clash. 74 Cases, when scrutinized using the framework,
requirements and limitations mandated by law, will not a stand in
court.

71
As narrated by MBETELA members for the Baguio Case Study.
72
In Arakan Valley, when a non-IP is involved in a case, the complainant decides where to bring the
case for settlement. The Manobo always prefer to bring the case to the tribal court for settlement.
Cases of land dispute brought to the BJS or to the Department of Agrarian Reform (DAR) for
settlement, usually by a non-IP, are sent back to the tribal court for application of customary law.
73
In the case of the Mandayas, the members of the Limpong ng Mangkatadong are also members of the
Lupong Tagapamayapa. The Limpong in their dual capacity as Lupon by default employ their
traditional disputes processes and mechanisms. The Barangay Captains of the two areas are both
Mangkatadong and are considered by the community members as part of the Limpong. The elders
view the primacy of traditional processes not as an interface of two mechanisms but as recognition of
the tribe’s collective rights to self-governance and cultural integrity.
74
From December 12,-15 2007 the Gukom of the Seven Rivers was specially convened. For the first
time in their history twenty-three cases from Subanon and non-IP complainants against the Toronto
Ventures Inc, a multinational mining firm and SCAAs, were heard. The dates for the hearing were set
as early as the 2nd week of September 2007. Notices were duly sent to the proper parties. TVI
acknowledged the notice through a letter from the President of the Company. Following a resolution
from the NCIP, they refused to recognize the authority of the Gukom of the Seven Rivers. Following
the Subanon customary law, the Gukom proceeded with the hearing as scheduled. The notice
requirement after all was complied with. After four straight days of ascertaining days of hearing and
trying the complaints, judgment was rendered. The execution thereof was however held.
118 Indigenous Mode of Dispute Resolution

The recognition of customary laws accorded by the BJS 75 can be

confusing at best. So, while the law recognizes the customs and
traditions of indigenous cultural communities by allowing its
application in settling disputes, the same provision limits its
application only between members of the cultural communities. The
limitations imposed by the BJS cover the following: (1) territorial
limitation; (2) limitations on the authority to impose criminal
sanctions and; (3) limitations on the cognizability of serious offenses
(Humiding:1998)

IPRA clearly provides for the primacy of customary law. The law
mandates that disputes involving indigenous peoples are to be settled
using customary law and practices. There are, however, certain
provisions 76 that tend to say otherwise. Section 63 states that
customary laws, traditions and practices of the ICCs/IPs of the land
where the conflict arises shall be applied first with respect to property
rights, claims and ownerships, hereditary succession and settlement
of land disputes. The provision as stated tends to give an impression
that customary law is applicable only in conflicts arising from
property rights, claims and ownerships, hereditary succession and
settlement of land disputes. 77 Even Section 15 comes with a
drawback provision by indicating that conflict resolution institutions,
peace-building processes or mechanisms and other customary laws
and practices may be used, but only within their respective
communities, and as may be compatible with the national legal
system. A proviso mandating that the IDRM/IJS be compatible with
the national legal system is very constricting. It is a mandate even a
tad more stringent than being within the framework of national
development. Although IP rights advocates insist that any doubt
should be ruled in favor of the IP/ICCs, this ambiguity may be subject
to abuse by limiting the application of customary law.

The legal creation of tribal courts in ARMM through the Regional

Legislative Assembly has yet to be realized. But, as prescribed by the
Organic Act, the jurisdiction of the tribal courts is limited to:

(1) Settling and deciding controversies and enforcing

decisions involving personal and family and property

75
See Sec 412 (c) RA 7160, see also Secs 399 (f) and 408. See also Sec 407 (c) Muslim Mindanao
Autonomy Act No. 25. (MMAA No. 25). MMAA No. 25, is the regional local government code of
the ARMM.
76
See Secs. 29, 63, 66, 72 of RA 8371.
77
See also, RULE IX Section 1: Primacy of Customary Law. All conflicts related to ancestral domains
and lands, involving ICC/IPs, such as, but not limited to, conflicting claims and boundary disputes,
shall be resolved by the concerned parties through the application of customary laws in the area where
the disputed ancestral domain or land is located.
 Indigenous Mode of Dispute Resolution 119

rights of members of the indigenous cultural

community concerned, in accordance with the tribal
codes of these communities; and

(2) Exercising exclusive jurisdiction over crimes

committed by members of indigenous cultural
communities. These include crimes whose imposable
penalty does not exceed imprisonment of six years or a
fine not exceeding P50,000.00 or both, and where the
offended party or parties are also members of the
indigenous cultural community concerned.

Although wider in scope than the BJS, the degree of recognition

provided for in IPRA and the Organic Act are limited in terms of
territory, authority to impose fines and criminal sanctions and
cognizability of serious offenses. This is not surprising. After all, the
IPRA and the ARMM Organic Act are formulations that attempt to
harmonize the IJS and NJS. By recognizing customary and other
indigenous institutions, these laws in effect attempted to define the
preferred mode of interface by the state. This study shows however,
that there is a wide gap between the spaces of interface
accommodated on the ground and the state prescribed interface.
Hence, an observation in 1983 (Lynch:458) remains true until today;
“violations of prevailing legal norms, indigenous and national, are
often resolved outside the NJS.”

Although the various modes of interfaces documented confirm the

observation that “conflicts between this dominant system and local
cultures are always managed at local levels” (Gatmaytan ed: 37), the
perceived status quo is so fragile; such that as one area of jurisdiction
expands, the other one constricts until it runs the risk of tipping
towards the vanishing point. 78

In a research forum conducted in Davao City for the study, Bro. Karl
Gaspar 79 used the Theory of Communicative Action to synthesize
and thereby understand the process that led to the current interface
and interaction between the unitary national justice system and the
indigenous justice systems.

78
An observation attributed to the case study.
79
Bro. Karl Gaspar is a prominent Davao based socio-anthropologist who has written several studies on
Indigenous Peoples and Moro in Mindanao, examples of which are: The Lumad’s Struggle in the Face
of Globalization (2000) and the Mindanao Lumad Social Movement (1990).
120 Indigenous Mode of Dispute Resolution

Jürgen Habermas 80 makes fairly clear what the lifeworld is, in

traditional societies and how it is changed—how it is rationalized—
during the course of modernization and capitalist development. 81
Following Gaspar’s analogy, IDRM/IJS is deemed a component of
the indigenous lifeworld. The system component is comprised of the
nation-state as represented by the national legal system. Accordingly,
IDRM are the very essence and vehicle of indigenous justice systems,
playing an integral role within a specific context for purposes of
providing justice and preserving harmony in the community. As such,
it is still a very integral component of the indigenous lifeworld. The
system however, with its bureaucracies and institutions, is operating
in a manner that is, frequently, clearly contradictory to the values and
beliefs held by the IPs within the lifeworld.

The lifeworld "gets cut down more and more to one subsystem
among others". 82 In this case, the indigenous lifeworld survives, but
has become colonized by the system. The uncoupling of the system is
best illustrated through the various negotiated and fragile interface
embedded, at times with acknowledged or unacknowledged tension
between the competing justice systems. However, “it would be
wrong,” Habermas claims, “to simply condemn this uncoupling.”

Here lies the challenge. Given the state of IDRM/IJS and granting
that the nation-state is increasingly looking into more pluralist
approaches particularly in the interest of justice reform and access to
justice, there is a need for "the actors to seek to reach an
understanding about the action situation and their plans of action in
order to coordinate their actions by way of agreement.” 83

The analysis at this point, prior to laying down recommendations and

reflections, and taking off from the points discussed at the Research
Forum, is to engage in communicative action. This action must
enable actors in society to reach a common understanding and to
coordinate actions by reasoned argument, consensus and cooperation,
rather than strategic action strictly in pursuit of their own goals.
Communicative action provides a theoretical basis for a kind of

80
Jürgen Habermas’s writings are widely acclaimed among the major contributions to the theoretical
understanding of contemporary society, specifically his legal theory, which has, in recent years,
become a topic of growing scholarly attention. With his two-volume work The Theory of
Communicative Action (1984, 1987a), Habermas has undoubtedly formulated an innovative and
influential theory of society.
81
Roger E. Bolton, Habermas Theory of Communicative Action and the Theory of Social Capital,
http://www.williams.edu/Economics/papers/Habermas.pdf (March 22, 2008).
82
Jürgen Habermas, The Theory of Communicative Action,Volume 2, System and Lifeworld: A Critique of
Functionalist Reason, p. 154.
83
Jürgen Habermas as quoted in Stefan Szczelkun Summary of the Theory of Communicative Action,
http://www.csudh.edu/dearhabermas/publsbm01.htm (March 22, 2008).
 Indigenous Mode of Dispute Resolution 121

planning that emphasizes: 1) ensuring widespread public

participation; 2) sharing of information with the public; 3) reaching
consensus through public dialogue rather than exercise of power; 4)
avoiding privileging of experts and bureaucrats; and 5) replacing the
model of the technical expert with one of the reflective planner.

The existing justice systems are worlds apart and only through
methods inspired by communicative action can these divergent
systems slowly begin to work towards a common understanding,
without necessarily subsuming the other. Without communicative
action, it would be difficult, if not impossible, to appreciate one of the
most common clamors made by the respondents and interviewees –
the call for a more meaningful recognition of indigenous justice
systems.

Recommendations

At this juncture the study carefully moves towards some insights,

reflections and recommendations, with a caveat that “it is not
possible, on a national scale, to generalize the content of a specific
policy/analysis corresponding to unique communities of specific
ethno-linguistic groups. It is only within specific communities that it
is possible to understand their existing legal systems and also the
processes through which these systems change”. (Gatmaytan ed.: 60)

Despite this, there is certainly a need for the recognition of the

IDRM/IJS that goes beyond merely acknowledging it. There is a
concrete need to recognize and respect its special jurisdiction in terms
of: 1) cognizable offenses; and 2) affirming the primary jurisdiction
of IDRM/IJS.

The Point of Recognition and then some…

The accommodations and interface illustrated above are as varied as

the cases settled before IDRM/IJS. The exercise in jurisdiction 84 of
all types of cases of all IDRM/IJS documented academically and on

84
Special jurisdiction includes all of the powers of any jurisdiction: Notio, Iudicium, Imperium or
Coercio. That is, the authority to review relevant issues, including operative functions such as calling
witnesses, collecting evidence (Notio); the ability to resolve relevant issues using its own law
(Iudicium), and, finally, the ability to use force to render effective its decisions when necessary. This
includes actions that may restrain rights, such as executing detentions or demanding payment or labor.
(Coercio or Imperium)
122 Indigenous Mode of Dispute Resolution

the ground, is a great source of tension. In 1980, in a study 85 towards

a definition of a national policy on the recognition of what was still
then referred to as Ethnic law, the author classified the cases that may
and may not be handled, into sectors: 1) preferred sector, 86 2)
acceptable sector, 87 3) neutral sector 88 and 4) unacceptable sector. 89
The author did not provide examples, but for an article that was, in a
way, deemed remarkable in its time 90 - it must have created an
impact. At the very least, it must have captured the appreciation of
the legal community and policy makers on Ethnic law, now more
commonly referred to as customary law. Thus, the provision on
certain limitations as reflected in the recognition provided by law.

The assumption then, which could still be the apprehension now, is

that the IDRM/IJS should not exercise jurisdiction over certain cases
or conflicts that can cause minimal and/or substantial harm to
national interest. At the risk of overly generalizing but without
romanticizing IJS, “[i]nstitutions and legal systems rooted in pre-
conquest era must not be summarily dismissed as primitive, inutile
and/or irrelevant.” This study witnessed how various IDRM/IJS
slowly adjusted itself to the changing times and needs, to be more
effective, and in the interest of restoring peace and harmony in their
respective communities.

The thought of “settling” a murder case could be unthinkable and

even repulsive for justice and human rights advocates, but the
IDRM/IJS, as documented by this research, do not exist in a vacuum.
Neither do they thrive within the criminal justice and penal processes

85
Perfecto V. Fernandez, Towards a Definition of National Policy on Recognition of Ethnic Law Within
the Philippine Legal Order, PHILIPPINE LAW JOURNAL 55:4, pp. 383-393.
86
For the preferred Sector, recognition would clearly be in the national interest; hence, the norms
coming within such Sector must enjoy priority in operation. Matters involving members of the same
cultural community, which come within the purview of such sector, shall be subject thereto without
qualification. Thus, the norms of such Sector are accorded Mandatory Jurisdiction. This means simply
application without exception.
87
For the Acceptable Sector, which can cause no substantial harm to national interest, the norms have
immediate public permissive application, in that through common consent, the parties thereto, may
choose or elect to be governed by the national law, in lieu of such applicable ethnic law. In other
words, the norms in the Acceptable Sector are of immediate application, and will apply unless the
parties exercise the above stated option. Thus, the norms of such Sector are accorded Primary
Jurisdiction, which the parties may avoid, however, by electing to come under the national law.
88
For the Neutral Sector, which can cause minimal harm to the national interest, the law of immediate
application shall be the national law, but because the harm is only minimal, hence tolerable, the
parties are allowed to elect or choose the applicable norms of such Sector to their dispute. Thus, the
norms therein are Permissive of Elective Jurisdiction, because they can apply only upon specific
request of the parties concerned.
89
For the Unacceptable Sector, the substantial harm to national interests that they can cause, places them
beyond the outer limit or boundary mentioned above. Instead of recognition, the response must be
negative, ranging from denial of recognition by declaring either the parties themselves invalid, or the
outcome of their operation invalid, or both, to repression through criminal prohibition of what such
norms may allow or recognize.
90
Gatmaytan, Change and the Divided Community p. 46.
 Indigenous Mode of Dispute Resolution 123

of the NJS. The many varied IDRM/IJS systems and procedures are
still valued as sacred by many. It is still preferred by the peoples and
communities that struggle to preserve it mainly because of these
features:

Speedy – every case is usually resolved

within 24 hours, unlike the BJS and the
courts, which require years to resolve a
case;

Inexpensive – does not entail cost for

travel, filing the complaint, lawyers and
others.

Impartial – it is mediated by tribal

elders who are highly respected by
community members for their
knowledge and wisdom on customary
laws, and for their sound judgment; it is
rooted in their culture, thus, reflecting
their system of beliefs and values.

Harmonizing – what is restored is not

only the good relations between the two
parties and their families, but also the
good relations within the community.
This, for them, is true justice which
cannot be achieved by the adversarial
nature of the mainstream legal system.

Translated to justice reform jargon, IDRM/IJS are effective vehicles

not only for promoting access to justice but, more importantly, for
ensuring that justice is served for the poor and marginalized. And in
the interest of promoting ADR, this is also a venue that can provide
insights on conflict resolution. In the same way, that skills-wise, the
elders can also learn from the trained and accredited mediators.

Pushing for more meaningful recognition in this case, the special

jurisdiction does not amount to creating and carving out new
jurisdictions. It is merely recognizing an effective justice system that
has been there since time immemorial and is duly respected by the
members of the indigenous peoples’ communities. As such, the
challenge lies in realizing, respecting and recognizing indigenous
124 Indigenous Mode of Dispute Resolution

institutions 91 and justice systems that existed pre-conquest, and are

struggling to stay - for some systems - while others are at risk of
fading away. This article will not attempt to provide definitive
formulations towards recognizing special jurisdiction, but let it be the
starting point of further discussions as well as multi-party and cultural
exploration on the issue. The recognition of special jurisdiction may
be anchored not only on the primacy of customary law, but on the
constitutional provision stating that: [t]he State shall recognize,
respect, and protect the rights of indigenous cultural communities to
preserve and develop their cultures, traditions, and institutions. 92

Another space that needs more room for accommodation is the call
for the recognition of the primary jurisdiction of IDRM/IJS vis-à-vis
BJS. As recommended by leaders of BITO 93 :

“[T]he tongtong should officially be

declared as the first step in conflict
resolutions. It should not be offered as an
option but a mandatory first-step in all
conflict resolutions. It must cover all
cases, from petty to serious offenses
including rape and murder.” 94

This sentiment is also shared by the majority of focus areas

covered. 95 The internal discussions of the research team and the
consultations conducted with specialists from various fields, despite
some hesitations, ultimately agreed to reiterate this particular call
gathered from various community-based focus group discussions.

While IPRA upholds the primacy of customary law, there are other
provisions that create ambiguity, showing the need for an
interpretation. Thus, although IPRA provides that “where the dispute
could not be resolved through customary law, it shall be heard and
adjudicated in accordance with the Rules on Pleadings, Practice and
Procedures before the NCIP” 96 , the prevailing notion is that a conflict
that is not resolved through IDRM/IJS should be referred to BJS.
Thus, the tension between IJS and BJS is the most common of the
interfaces documented. And while there are existing negotiated

91
Raquel Yrigoyen Fajardo, Legal Pluralism, Indigenous Law and the Special Jurisdiction in the
Andean Countries, Beyond Law No. 27 as emailed to author October 10, 2007.
92
Art. XIV, Sec, 17, 1987 Philippine Constitution
93
Bakun Indigenous Tribal Organization, Bakun, Benguet
94
Validation Interview conducted at Brgy. Ampusungan, Bakun, Benguet.
95
Calamian-Tagbanua, Higaonon, Bukidnon, Karul-anon, Talaandig, Bakun, Tagabuhid, Alangan,
Ragatnon
96
See Rule IX Sec 1 Par 2, AO 1 Series of 1998.
 Indigenous Mode of Dispute Resolution 125

accommodations in practice, a circular recognizing, protecting and

promoting the primary jurisdiction of IDRM/IJS will certainly
provide the much needed breathing space for the IJS’ continued
existence.

However, the two main recommendations beg for more thorough

discussions, heated debates and necessary refinements. For the
moment, the researchers hope that the articulations in this study are
sufficient to indicate and emphasize the need for a more significant
form of recognition.

REFERENCES

Arquiza, Yasmin D.
2005 “The Tongtong as A Model for Conflict Resolution,” A
Journey of Hope Implementing the Indigenous Peoples Rights Act
of the Philippines Volume 3, The Road to Self-Governance. Manila,
International Labour Office, 2005.

Barton, Roy F.
1969 Ifugao Law, Berkeley, Los Angeles: University of
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1949 The Kalingas: Their Institutions and Custom Law. Chicago:
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Fajardo, Raquel Y.
_______ Legal Pluralism, Indigenous Law and the Special
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301/
RYF-legalPluralism-BeyondLaw27-5.pdf.

Fajardo, Raquel Y., Kong Rady, Phan, Sin

2005 Pathways to Justice, Access to Justice with a focus on Poor,
Women and
Indigenous Peoples, UNDP Cambodia downloaded from:
http://www.alertanet.org (March 28, 2008)

Fernadez, Perfecto V.
1980 “Towards a Definition of National Policy Recognition of
Ethnic Law Within the Philippine Legal Order,” Philippine Law
Journal 55:4, pp. 383-393.
126 Indigenous Mode of Dispute Resolution

Gatmaytan, Augusto B.
1992 “Land Rights and Land Tenure Situation of Indigenous
Peoples in the Philippines,” Philippine Natural Resources Law
Journal 5:1, pp. 5-41.

2000 “Change and the Divided Community: Issues and Problems

in the Documentation of Customary Law,” Philippine Natural
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Gatmaytan, Augusto B. ed.,

2007 Negotiating Autonomy Case Studie on Philippine
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Habermas, Jürgen
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1983 “The Philippine Indigenous Law Collection: An

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1988 “Invisible Peoples and A Hidden Agenda: The Origins of

Contemporary Philippine Land Laws (1900-1913),”
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Jajure, Raissa H. and Torrefranca, Rosalinda Charisma C.

2004 Localizing the Justice System in 6 Peace Zone Areas in the
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Lynch, Owen J.

Roy, Devasish Raja

2005, Traditional Customary Laws and Indigneous Peoples in
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Indigenous Peoples: The Case of the Chittagong Hill Tracts in
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 Indigenous Mode of Dispute Resolution 127

Santos, Boaventura de Sousa

1995 “Toward a New Legal Common Sense.” London:
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Sevilla, Ester O. and Lacson, Danilo C.

2007 “Timuay at Datu Indigenous Self-Governance in the
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Other Materials

Primer on JURIS
http://www.alternativelawgroups.org/resources.asp?sec=det&id=170

ALG Framework for Justice Reform

http://www.alternativelawgroups.org/resources.asp?sec=det&id=169

Bolton, Roger E.
Habermas Theory of Communicative Action and the Theory of
Social Capital,
http://www.williams.edu/Economics/papers/Habermas.pdf
(March 22, 2008).

Griffiths, Anne
Customary Law in a Transitional World: Legal Pluralism Revisted
for Conference on Customary Law in Polenesia, 12th October, 2004.
Anne.Griffiths@ed.ac.uk

Humiding, Jennifer P.
1998 Interfacing National Law and Customary :aw at the
Barangay Level: Limitations of the State Imposed Barangay Justice
System in Indigenous Communities. A Thesis Submitted to the
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Szczelkun, Stefan
Summary of the Theory of Communicative Action,
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22, 2008).
128 Indigenous Mode of Dispute Resolution

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Constitution
1987 Constitution of the Republic of the Philippines.

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Republic Act No. 8371 (The Indigenous Peoples Rights Act), 1997.
Republic Act No. 9054 (Expanded Organic Act for the Autonomous Region
in Muslim Mindanao),
Republic Act No. 7160 (Local Government Code), 1991.

AO No. 1, Rules And Regulations Implementing Republic Act No. 8371,

Otherwise Known As “The Indigenous Peoples’ Rights Act Of 1997.”

Muslim Mindanao Autonomy Act. No. 25

Supreme Court Decisons

Isabani Cruz and Cesar Europa v. Secretary of Environment and Natural
Resourcws, Secretary of Budget and Management, and the Chair and
Commissioners of the National Commission on Indigenous Peoples, G.R.
No. 135385, 347 SCRA 128, 6 December 2000.

Rubi v Provincial Board, G.R. No. 14078, 39 Phil. 660.

People v Cayat, 68 Phil 12.

Pitog v People, G.R. # 76593, 11 October 1990.

 TRAVERSING BOUNDARIES AND THE NO-MAN’S LAND:
on mediation, gender, rights and justice1

The paper aims to provide readers with a general sense of the

gender/social context aspect in court annexed mediation including
on-the ground realities drawn from JURIS studies. The ideas and
reflections that are shared in this paper are preliminary and
tentative. They are intended only to spur more discussion and
thinking among those who have a stake in CAM, especially in its
potential to bring justice closer to groups and individuals who are
more disadvantaged, are in the margins, or are “invisible” in society.

1. The CAM design, foundational principles, and practice:

the leitmotif

Court-Annexed Mediation or CAM is an enhanced pre-trial procedure

that involves settling mediatable cases filed in court with a Supreme
Court-accredited mediator assisting the parties to consider options
and to reach an acceptable compromise. Judicial Dispute Resolution
(JDR) has become part of CAM as an innovation under JURIS. The
case that is not settled in the first stage is referred to the JDR judge
who, as conciliator, mediator, and neutral evaluator, assists parties to
reach acceptable options to resolve their dispute. Compromise
agreements forged by parties are submitted to the court for approval
and constitute the judgment on the case. Cases that are not settled in
JDR are referred to another judge for pre-trial proper and trial. Parties
retain the option at any time to revert to JDR

Referral to CAM is mandatory. Disputants who refuse to appear in

CAM proceedings or other parties who interfere in them could be
imposed sanctions.

Reaching a mutually acceptable agreement for parties to the dispute is

crucial to achievement of the objectives under CAM or JDR. A case
settled in CAM means one less case that goes to trial and one case off
the court docket. Justice is also achieved as disputants, based on their
self or guided generation of options, decide what is ‘justice” in their
particular situation, and agree on the resolution of conflict.
Communitarian interests of ‘restoring relationships” are also likely to
be served because the open and informal setting and the non-

1
A paper prepared by Atty. Eleanor C. Conda, National Judicial Institute/JURIS Gender Equality
Adviser. 21 June 2008.
130 Gender and Mediation

adversarial nature of the CAM process encourages communication

between the disputants, that could lead to understanding, and healing
of the rift between them. An adversarial, win-or-lose, litigation or
court adjudication mode hardly provides the environment for this
kind of relationship-mending.

CAM has the following elements and principles that are drawn from
the design and practice:

(a) an impartial, neutral mediator or JDR judge whose role is to

facilitate the process of communication and negotiation
between disputants, help the parties generate options, and
assist them to find a common ground from which they agree
on the resolution of their conflict;
(b) an open, informal, and physical setting that fosters the
communication and negotiation between parties who are
assumed to have relatively equal bargaining positions, and are
willing to find a solution to their conflict based on interests
and values, and not on their positions.
(c) mediator’s and JDR judge’s orientation on social context and
gender equality considerations in CAM, skills of and
techniques available to the mediator/JDR judge in
communication, conflict management, managing the CAM
process, conducting a gender and socially-responsive CAM
process, and equalizing possible “power imbalance” between
parties based on gender and other grounds.
.
This background on CAM will be the leitmotif for succeeding
sections. While the discussion that follows is preliminary, it hopefully
jumpstarts a sustained examination of CAM to ensure that it
enhances promotion of access to justice by the poor and other
disadvantaged groups including women. Further, consolidation in this
paper of pertinent data from JURIS studies on CAM conducted from
September 2007 through June 2008 is consciously made in response
to “absence of empirical data on which to base gender awareness
training of the judiciary,” identified as one of the gender-related
issues in the GAD Mainstreaming Plan for the Judiciary.
 Gender and Mediation 131

2. “Doing Gender” in CAM – a matter of justice; a matter of

human rights

Attention to gender equality concerns in the CAM program is seen as

part of the judiciary-wide GAD mainstreaming program, whose
implementation is steered by the Committee on Gender
Responsiveness in the Judiciary. Put in place in 2004, the Plan
envisions a “judicial system that is sensitive and responsive to gender
equality and empowerment x x x thereby providing effective, efficient
and accessible justice to all,.” The mission of the Plan is: “(t)o
enhance speedy and fair administration of justice to all, regardless of
age, gender, class, ethnicity, or religious or political beliefs through
an effective and efficient judicial system that works with dignity,
integrity, and accountability.”(emphasis supplied)

The GAD Plan of the judiciary thereby supports and promotes the
Supreme Court’s Action Program for Judicial Reforms (APJR) in
particular its Access to Justice 2 component. This component aims to:

“to pursue and promote the following: physical access to the

courts as well as speedy and fair adjudication of cases for all;
protection of the poor from abuse by those who claim to
influence judicial decisions; and improvement of the
affordability of judicial services to the poor.”

The Constitution, specific domestic laws, and international human

rights treaties to which the Philippines is party provide bases for
pursuing gender equality and access to justice, and can be the legal
normative framework for implementing the Judiciary’s GAD
mainstreaming program, including that for CAM.

The 1987 Philippine Constitution declares that the State “values the
dignity of every human person and guarantees full respect for human
rights.” (Article II, Sec 11). Specific rights (almost all of which are
civil and political rights) are listed under the Bill of Rights.
Provisions pertaining to economic, social and cultural rights are
2
“Access” is defined in the APJR’s Supplement as the convenience (level of ease in physically reaching
the starting point of the service, and level of ease and speed in receiving the necessary service),
availability (presence of the service geographical proximity and accessibility), and affordability of
certain services in the justice system. Such services cover judicial services provided by the courts;
alternative dispute resolution (ADR) mechanisms, such as mediation or the katarungang barangay;
investigative, prosecutorial, and legal assistance services rendered by the Department of Justice and the
Department of the Interior and Local Government; legal or quasi-legal services provided by other
national government agencies, particularly to marginalized sectors; and other related services that
improve the capacity of individuals to access the justice system, such as information and education.
(Underscoring provided.)
132 Gender and Mediation

found in other parts such as the Declaration of Principles and State

Policies and the article on Social Justice and Human Rights.

Significantly, the Constitution recognizes the important role of

women in nation-building and ensures equality before the law of
women and men (Article II, sec.14), in addition to the equal
protection clause provided under the Bill of Rights. The Women in
Nation-Building Act (Republic Act 7192) reiterates this provision in
its Declaration of Policy, emphasizing that the State “shall provide
women rights and opportunities equal to that of men.” Equal rights
guarantees are provided also in specific laws like inter alia the
Indigenous People Rights Act (Republic Act 8371) and the Family
Code (EO 209, 1987).

Also applicable are international human rights treaties that the

Philippines has ratified 3 . These include the following: International
Civil and Political Rights (ICCPR), the International Covenant on
Economic, Social and Cultural Rights (ICESCR); the UN Convention
on the Elimination of All Forms of Racial Discrimination (CERD);
and, the UN Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW). Legal obligations arising
from state ratification of and the normative content of rights defined
in these and similar human rights documents, apply to all state organs
including the judiciary. 4

A human rights approach broadens the agenda of CAM gender

integration, namely, to ensure respect, protection, and promotion of
the human rights of litigants/disputants in the CAM design and
process, 5 including their rights to non-discrimination and to
substantive (de facto) equality in these rights.

3
In the Philippines, customary norms and general principles of international law (including the
principles of equality and non-discrimination) are deemed incorporated into the domestic legal system
under Article II, section 2 of the Constitution. International human rights treaties, and other such
agreements, become part of Philippine law under the treaty clause of the Constitution (Article VII,
section 21).
4
See e.g. General Comment No. 31 [80] Nature of the General Legal Obligation Imposed on States
Parties to the Covenant : 26/05/2004. CCPR/C/21/Rev.1/Add.13. (General Comments), wherein the
Human Rights Committee reiterates that “(t) he obligations of the Covenant in general and article 2 in
particular are binding on every State Party as a whole. All branches of government (executive,
legislative and judicial), and other public or governmental authorities, at whatever level - national,
regional or local - are in a position to engage the responsibility of the State Party.”
5
Article 14 of the ICCPR, for example, states that “1. All persons shall be equal before the courts and
tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a
suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and
impartial tribunal established by law.” Although the provision contemplates adjudication in courts or
tribunals, the standards of “fairness,” “public hearing,” and “competent, independent and impartial
tribunal” that Article 14 sets can well refer to standards applicable to CAM.
 Gender and Mediation 133

Guarantees of human rights are contained in the UN Charter and the

Universal Declaration of Human Rights, and also in other UN core
human rights treaties and other documents. 6 In addition, the ICCPR
and the ICESCR as examples have express provisions on equality
between women and men. 7 The CEDAW provides the international
legal normative framework on sex equality and sex-based non-
discrimination, while CERD, on ‘race” based non-discrimination and
equality among ‘races’.

Consideration in CAM of gender equality concerns is thus a strategy

to advance human rights. The aim of this strategy may be two-fold:
to ensure that human rights of parties to a dispute are respected and
recognized, protected, and promoted; and that these rights are not
impaired or denied on the ground of sex/gender, by the introduction
of CAM and by litigants’ going through the CAM process.

A basis for adding “social context “ to this proposition is discernible

from, among others the integration of this theme into mediation/JDR
orientations. This session in the Integrated Basic Mediation Course
has for its objectives, “(a) illustrate how an understanding of the
Philippine cultural value system can be used to facilitate
negotiation/mediation; (b) discuss socio-cultural factors in
negotiation/mediation, i.e., class, gender, education, social status, age,
religion, and values; and (c) explain cultural considerations in
handling emotions during the negotiation/ mediation processes.”
Power imbalance discussions in these orientations take the premise
that gender or other status or condition of disputants affect effective

6
See ICCPR, Article 2 (1): “ 1. Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the
present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.” Also, (b) ICESCR, Article
2(2): “2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in
the present Covenant will be exercised without discrimination of any kind as to race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth or other status.”
6
See ICCPR, Article 3: The States Parties to the present Covenant undertake to ensure the equal right of
men and women to the enjoyment of all civil and political rights set forth in the present Covenant.
(Elaborated in general comment No. 28 Article 3: The equality of rights between men and women,
Sixty-eight Session (2000), in HRI/GEN/Rev. 6, p.179); Also, ICESCR, Article 3: The States Parties to
the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all
economic, social and cultural rights set forth in the present Covenant. (Elaborated in general comment N.
16, Article 3: the equal right of men and women to the enjoyment of all economic, social and cultural
rights, E/C.12/2005/3 13 May 2005.
134 Gender and Mediation

communication and negotiation in CAM. It is also consistent with

the Philippine Judicial Academy’s integration of social context issues
in its judicial education program. Bearing this in mind, it may be
argued that CAM as designed implicitly adopts a contextual
approach. The proposition earlier made thus can be expanded as
follows to encompass other context issues:

Consideration in CAM of gender and other social context concerns

can be viewed as a strategy to advance human rights. The aim of the
strategy may be two-fold: to ensure that human rights of parties to a
dispute, without any distinction, are respected and recognized,
protected, and promoted; and that these rights are not discriminated
against on any ground with the introduction of CAM and the
litigants’ going through the CAM process.

This general proposition obviously needs to be developed beyond its

exploration in this paper. It can be defended as a means for the
judiciary to help meet obligations of the Philippines under
international human rights law. But on a more practical plane, its
added value to CAM implementation, and to disputants’ access to
justice and their human rights promotion becomes clearer when
details of the framework are defined. Part of the work ahead is to
define possible programmatic and procedural implications from the
adoption of this human rights perspective in the social context aspect
of CAM.

3. Gender/Social Context-related Considerations in CAM:

Some Definitional/Perspective Issues

Core concepts in gender mainstreaming are revisited in this section

in light of emerging medical findings and feminist theories. The
rough contours of an approach that could be used are presented in
the same spirit as the earlier exploration of expansive perspectives
and frameworks for the social context/gender equality aspect of CAM
was made. Since the terms of relevance to the discussion could be
defined in different ways, the definitions of the National Commission
on the Role of Filipino Women (NCRFW) are the ones adopted here.
The NCRFW is the Philippines’ coordinating body on policies
affecting gender equality. One of its functions is to “(i)nstitute the
gender responsiveness of national development plans and coordinate
the preparation, assessment and updating of the National Plan for
Women, ensure its implementation and monitor the performance of
government agencies in the implementation of the Plan at all levels.”
 Gender and Mediation 135

In the NCRFW website, 8 gender mainstreaming or Gender and

Development (GAD) mainstreaming is explained as:

the main strategy for ensuring that the

government pursues gender equality in
all aspects of the development process
to achieve the vision of a gender-
responsive society where women and
men equally contribute to and benefit
from development. It is a set of
processes and strategies aimed at
recognizing and addressing gender
issues in legislation, policies, programs
and projects and institutional
mechanisms of the government on a
sustained basis. It is essentially
institutionalizing gender concerns in
the mainstream development processes
and agenda and not just in the
peripheral programs and projects of
the government.(emphasis supplied.)

“Sex” is “the natural distinguishing variable based on biological

characteristics of being a woman or a man. It refers to physical
attributes pertaining to a person's body contours, features, genitals,
hormones, genes, chromosomes and reproductive organs.”

“Gender”, in contrast, refers to

roles, attitudes and values assigned by

culture and society to women and men.
These roles, attitudes and values define
the behaviors of women and men and
the relationship between them. They are
created and maintained by social
institutions such as families,
governments, communities, schools,

8
http://www.ncrfw.gov.ph/inside_pages/gender_mainstreaming/gender_101.htmlGender and Sex
136 Gender and Mediation

churches and media. Because of gender,

certain roles,traits and characteristics
are assigned or ascribed distinctly and
strictly to women or to men.

NCRFW adds that,

(t)he social relations of gender seeks to

explain the unevenness in male/female
relations - noted worldwide -- in terms
of sex roles in power sharing, decision
making, the division of labor, and
return to labor both within the
household and in society, among
others. It focuses on the attributes
acquired in the process of socialization:
our self and group definitions, our
sense of appropriate roles, values and
behaviors, and, above all, expected and
acceptable interactions in relationships
between women and men

Medical findings, advocacy on sexual minority rights, and feminist

theories on sex and gender have shaken the traditional understanding
of these concepts. As a consequence, distinctions between the
concepts of “sex” and “gender” are blurred. The male-female
binarized conception of “sex,’ is being challenged. There are also
calls to stretch the woman-man bipolar spectrum of ‘gender’ to a
broader continuum of gender. These are issues that challenge the
traditional theoretical/conceptual base of and have yet to be addressed
in gender/GAD mainstreaming programs.

A human rights perspective in the social context aspect of CAM

appears to provide a conceptual opening in which diversity issues
including those related to the sex/gender discourse can be
incorporated. Although possibly difficult and likely to meet
resistance, these expansive efforts have to be initiated. Not do so is to
ignore the exclusion and invisibility of some groups in society, and
the denial and impairment of the human rights of those who are
outside of the recognized categories, whether or not of their own
choosing. These include those who are ‘inter-sexed’ or those who
have physiological/biological male and female attributes; lesbians,
gays, and others, who are not or who may not identify as ‘men’ or as
 Gender and Mediation 137

‘women,” and who identify as genders in a continuum where the

woman-man categories lie on the two extreme ends. 9

One approach that examination of gender/contextual issues can adopt

is to focus on diversity, instead of on gender, sex or other identities.
This veers away from the traditional circumscription of the
sex/gender division and the bipolar categorizations of male-female,
and be more inclusive of ‘invisible’ groups.

Diversity for the purpose can refer to (a) differences among

individuals on grounds including sexual preferences and orientations
and sex and gender identities, ethnic origin, class, religion, and so on;
(b) assumptions and stereotypes attached to a collectivity defined by
these or other grounds; and, (c) relative value or merit attached to
attributes, characteristics, interpretations or views identified with a
collectivity. Collectivities can be fisherwomen and fishermen,
politically elite women, urban poor women, rural poor women,
lesbians, and so on.

“Diversity analysis” recognizes that there can be many bases or

grounds for the formation of collectivities. It involves examination of
(a) how and why certain aspects of diversity hamper or facilitate
comparative recognition of collectivities and the comparative
distribution among them of economic (and political) resources; (b)
how those aspects associated with one group or collectivity are
privileged relative to those of another or others; and what the impact
is of this privileging on the collectivities involved; (c) how anything
‘coded’ as or identified with a marginalized or ostracized collectivity
is devalued or disparaged, and the impact of this on especially on the
collectivity and members thereof; and (e) how this privileging or
devaluing find legal and structural translations in society. By
recognizing collectivities on diverse bases helps to avoid being
entrapped in narrow categorizations like women and men; male-
female, heterosexual vs. homosexual, Christian-Muslim, and so on. It
also helps affirm invisible and silent groups in society.

9
For more information on sex/gender, medical experiments and findings, and theories and perspectives,
see e.g. Newsweek, “The Truth about Gender,” updated October 18, 2007, at
http://www.newsweek.com/id/49232; Newsweek, “Rethinking Gender,” updated August 21, 2007, at
http://www.newsweek.com/id/34772. See also pertinent sections in e.g. Steven G. Smith, Gender
Thinking (Philadelphia, 1992); Anne C. Hermann and Abigail Stewart, eds. Theorizing Feminism,
Parallel Trends in the Humanities and Social Sciences, 2nd ed.( USA and UK, 2001); Stevi Jackson and
Jackie Jones, eds. Contemporary Feminist Theories, (USA, 1998); Mikkola, Mari, "Feminist
Perspectives on Sex and Gender", The Stanford Encyclopedia of Philosophy (Summer 2008 Edition),
Edward N. Zalta (ed.), forthcoming URL =
<http://plato.stanford.edu/archives/sum2008/entries/feminism-gender/>
138 Gender and Mediation

Below is a tentative diversity analysis checklist to illustrate the scope

of issues or factors that can be examined through this analysis.

Adapting the diversity concept and the foregoing analysis onto the
examination of gender/contextual considerations in CAM leads to
asking questions like the following:

(a) Do the design, principles, or elements of CAM consider the

following

• differences among individuals on grounds including sexual

preferences and orientations and sex and gender identities, ethnic
origin, class, and so on;
• assumptions and stereotypes attached to a collectivity defined by
these or other grounds; and,
• relative value or merit attached to attributes, characteristics,
interpretations or views identified with a particular collectivity.

(b) What are consequences or effects if any, of the exclusion or non-

consideration of any of these aspects on (i) the achievement
especially of the access to justice objective of CAM; (ii) the
concerned individuals or their collectivities, including their chances at
a fair resolution of their disputes through CAM; (iii) other interests,
e.g. peace and democracy?

(c) Are any of these aspects associated with a collectivity privileged

in the CAM design and practice? What are consequences or effects if
any, of this privileging -- such as in accessing the CAM process, self
determination and agency in negotiation, capabilities in
communication and negotiation, chances at a fair and just resolution
process -- on (i) the achievement of the access to justice objective of
CAM; (ii) on the concerned individuals or their collectivities,
including their chances at a fair resolution of their disputes through
CAM; (iii) other interests, e.g. attainment of peace and democracy,
etc.?

(d) What are mediators’/JDR judges’ attitudes, views, or conduct in

respect of aspects of diversity associated with disputants who belong
to particular collectivity or collectivities? Are these attitudes, views,
or conduct affirming of the rights and dignity of these individuals?
Are there CAM policies and guidelines to safeguard against potential
adverse effect on disputants, and their aspects to justice and human
rights?
 Gender and Mediation 139

(e) Are certain aspects of diversity that is ‘coded’ as that of or

identified with a marginalized or ostracized collectivity or group
devalued in CAM design and practice? What is the impact of this
devaluing or disparagement on (i) the achievement especially of the
access to justice objective of CAM; (ii) the concerned individuals or
their collectivities,’ including their chances at a fair resolution of their
disputes through CAM; and, (iii) other interests, e.g. attainment of
peace and democracy, etc.?

(f) What strategies or tactics to resist their domination or invisibility

and fight for their human rights and interests do disputants from
marginalized communities employ in the course of CAM process?
How do mediators/JDR judges view these strategies? Are they
supportive of them?

(g) What measures can be integrated into the CAM program

including temporary special measures (such as those required under
CERD and CEDAW) to help promote the interests and rights of
marginalized collectivities?

(h) Is there a process of monitoring and evaluation to ensure the

appropriateness and effectiveness of these measures? Is there a
system that enables continuous feedback into policy formulation and
program planning and implementation?

(i) Are there fora in which these collectivities and other stakeholders
including civil society groups are able to provide input into and
feedback on CAM design and program implementation?
140 Gender and Mediation

4. Gender and Social Context Considerations in CAM:

What the Studies Say 10

This section culls from, consolidates, and examines pertinent findings

of JURIS research and narrative data collected for JURIS
publications. It aims to add to the still limited understanding of
concerns related to gender and other contexts, based on CAM
implementation and practice in the 5 JURIS pilot areas. Ideas on
adjustments or innovations that can be introduced based on the
examination are certainly preliminary, and require development and
a more comprehensive data base.

a) The profile of disputants surveyed supports a view that CAM

promotes access to justice by women especially the poor, workers, or
informal settlers.

The ADR effectiveness study describes disputants’ profile as follows:

53% of the 492 litigants surveyed are female and 47% male. Majority
(83%) are married within the age range 29-48 (57%). Fifty one
percent (51%) reached college, (30%) reached high school, and
(12%) attained elementary education only. In terms of household
income the respondents are distributed into four major income
groups, P 7,800 and less (53%), P 7,800-18,000 (27%), P 18,000-
40,000 (11%) and P 40,000-above (9%). Those earning 7,800 and
less are considered the poorest (Class E) in income classification.
However, majority consider themselves home owners (56%) followed
by informal settlers (25%). Almost all of the litigants live in urban
areas (95%).

And the Report goes on to say that these disputants are “ most likely
the defendants in civil disputes or ejectment cases.” Based on this
profile, it concludes that CAM/JDR “(i)n a sense xx has made justice
10
Data used in this section are drawn from the following JURIS studies:
(a) Guillen, R. et al and Melanie P. Gan, ACCESS TO JUSTICE AND
EFFECTIVENESS OF ADR APPROACHES A research report by the JURIS
Project (August 2007) (hereafter the ADR Effectiveness study” or the Guillen
study 2000) ;
(b)Panga S. Jr, Parlade, C.V., Lopez Reyes, Melissa, Panga, M.S., RESEARCH ON JUDICIAL
DISPUTE RESOLUTION (JDR) AS AN ADR INNOVATION, Draft; (hereafter the “JDR study”
Panga, et al 2008);
(c) Womenlead Inc., The Gender Dimension of Mediation: Problems, Prospects and
Recommendations (hereafter the “Gender Dimension Research” or the Womenlead study); and,
(d) Social Weather Stations, Research on the Poor Accessing Justice and the ALGs as Justice Reform
Advocate. (hereafter the “ALG research” or the SWS study)
* The Most Significant Technique in Mediation Series and A Resource Guide on Gender for Mediators
and JDR Judges, both JURIS publications, are also sources of narrative data for this section and pertinent
non-JURIS materials.
 Gender and Mediation 141

more accessible to the marginalized sectors, e.g. women, workers,

and informal settlers.”

These data raise questions with gender/contextual implications:

Since referral to CAM is mandatory, does the slightly greater number

of female over male litigants/disputants who went through CAM,
most of whom are likely defendants or respondents, reflect the same
relative ratio upon the filing of cases? Are there gender-based factors
to which this slightly lopsided ratio can be attributed?

Narrative data shows that disputants are relieved after the resolution
of their conflict through CAM: “natapos din.” Compared with court
adjudication with delay and time factors, CAM does come out
understandably as a preferred option. Also defendants in BP 22/estafa
and other mediatable criminal cases may tilt toward a compromise
which may or may not be to their favor. Agreement to a possibly
unreasonable compromise agreement or one whose terms they could
not meet is by far a better prospect than imprisonment.

b) Mediatable Cases

The following are mediatable cases in the first and second level
courts:

(1.) All civil cases, settlement of estates, and cases covered by the
Rule on Summary Procedure, except those which by law may not be
compromised (e.g.,annulment of marriage).

(2.) Cases covered by the Lupong Tagapamayapa under the

Katarungang Pambarangay Law (P.D. No. 508, as amended by R.A.
No. 7160).

(3.) Civil aspect of Batas Pambansa (B.P.) Blg. 22.

(4.) The civil aspect of quasi-offenses under Title 14 of the Revised

Penal Code.

(5.) Civil aspect of Estafa and Libel cases where damages are sought.
(A.M. No.0I-I0-5-SC-PHILJA, dated October 16, 200I. AM. No. 04-
2-04-SC, dated July 20, 2004 and effective August 16, 2004).

While this aspect of the CAM design applies to all individuals or

groups, certain factors may render certain groups more vulnerable to
142 Gender and Mediation

being adversely affected by the enforcement of the policy on cases

subject of court annexed mediation. These factors can be status and
roles, biases and stereotypes, and disadvantages and inequality, based
on different grounds including gender.

(1) BP22/Estafa cases

In the Guillen study, BP 22/estafa cases comprises the largest number

of the cases (26%) involving survey respondents, followed by
unlawful detainer (24%) cases.

Of the BP 22/estafa cases, women account for 57% of litigants

surveyed. 88% are married with monthly household income of
12,900-18,000 (24%) followed by 18,800-40,900 (19%) and 9,800-
12,900 (15%). These 3 income groups alone make up 57% of the
litigants’ income surveyed, not to mention that majority (56%) are
also small/ micro entrepreneurs. 80% reached college and are
homeowners (85%) residing in urban areas (97%).(Guillen, at 16)

Informal feedback from a colleague in the Alternative Law Groups,

Inc. whose members operate outside of Metro Manila, observed the
same pattern. Many women defendants in these cases are teachers 11 . .

Available narrative data on BP 22/Estafa cases involve women

defendants who were poor and live in a rural area, and one who was a
government employee.

• In one case, 12 seventy-three 73 counts of estafa cases were filed

by a lending company against two women who recruited 73
individuals who acted as the recruiters’ co-borrowers. These co-
borrowers were housewives, and their husbands, children, or
“elderly,” who were residents of a village near a mountain.
Narrated the mediator:

About 30 of the 73 cases were settled, and most of the cases I settled
involved housewives. In most of the cases wherein the co-borrower
was a male, the male would express anger and say something like
“Kung hindi ka lang babae, matagal ka nang pinulot sa …”(If you
were not a female, you would have been long killed). This may have
also meant that if the conspirator were a male, the conspirator would
have undergone some form of punishment by the male co-borrowers.

11
Conversation of this writer with Atty. Glenda Litong sometime in 2007.
12
Story No. 13.“ One versus a Conspiracy” Most Significant Technique (sic) in Mediation Series, JURIS
Project (February 2008).
 Gender and Mediation 143

The rest of the 73 cases became back-to-court cases and would have
to go through JDR.

• The female defendant in the second case 13 was charged under BP

22. She acted as a broker of the sale of land and was entrusted by
the buyer with money for partial payment of the land purchased.
Defendant paid to the seller only part of the amount because she
spent the rest for the hospitalization of her mother. The check she
issued as partial payment to the buyer of the land turned out to not
have sufficient funds.

Many women assume gender roles within the family and economic
pressures have pushed many of them to be part of the informal
economy. The BP22 female defendants in the ADR study belong to
the middle class and are engaged in small to micro economic
enterprises. They do so most likely to support their families or
augment family income. The data above indicates that possible
heightened vulnerability of this group to the harsh impact of laws on
BP22/estafa. A more comprehensive study on mediatable cases
including BP22/Estafa and family law cases, from filing to CAM,
may be necessary in order to generate more understanding on
possible differential impact on different groups and individuals of
CAM-related neutral laws and guidelines.

(2) Support Cases

Custody, guardianship, support, separation of property, and

settlement of estates are among the mediatable family law matters
under the existing CAM design. Under Rep Act No. 8369,
designated family courts from among second-level courts have
jurisdiction over these cases.

A comparative case study on Family Disputes (Womenlead 2008) on

three women who filed claims for support against their husbands
showed how the women benefited from the mediation process. For
one of the three complainants, “(j)ust the thought that mediation may
help in making her husband change his ways was enough motivation
for her to follow through.” Unifying themes in these women’s
experience in their mediation cases drawn in the Womenlead study
illustrate how CAM proceedings can help women disputants draw on
their reserves of strength and help affirm their standing in a judicial
proceeding.

13
Case Study on “Deal or No Deal,” (Guillen, et. al., 2007)
144 Gender and Mediation

Display of strength. The three women displayed their inner strength

during the proceedings. Mona explained that there was no reason for
her to be scared. She was tense at times but overcame her
nervousness by relaxing herself and answering questions directly.
Flor’s motivation – that of seeing her husband change his ways –
pushed her to go on. For her part, Marie believed she was right in
filing a case against her husband. The resolve of these three women
was clearly revealed during the proceedings.

Mediation as an Important Judicial Engagement. The three women

commented that mediation was an important judicial engagement
because it really helped them in pursuing their cases. According to
Marie, mediation benefited her in terms of money, time, and effort
saved. Flor credited mediation for saving her family and making it
whole again.

Information gathered including from interviews for the JURIS

Resource Guide on Gender for Mediators and JDR Judges presents a
different picture, showing that women can encounter problems in
pursuing their family-law based claims through mediation.

Women, especially in family court cases such as spousal or child

support or custody, are often observed to have lesser bargaining
power as they have less emotional and economic ability to withstand
the transactional costs of the mediation, resulting to acquiescing to an
agreement that may not be completely agreeable and acceptable to
them. Oftentimes, a woman involved in such cases do not have the
resources to engage in long, drawn-out negotiations and litigation and
may be tempted to settle earlier in the process. Or worse yet, she may
agree on a compromise that is close to impossible to enforce, or an
agreement that puts the woman in a situation of having to incur the
greater burden of enforcing it. Stories from interviews would include
a man who, after agreeing to support his wife and child, fails to do so,
while the court finds itself helpless in enforcing the agreement due to
the foreign employment of the husband information he withheld
during mediation). Or a man who, after reluctantly agreeing to
support wife and child, only terminates willfully his employment just
to spite his wife and assert that he is still in control. Or a compromise
agreement that would make the wife run after and practically “beg”
for the support for her and her children from her husband.
Persistent patriarchal attitudes and deeply rooted stereotypes
regarding the roles and responsibilities of women and men in the
 Gender and Mediation 145

family and society 14 may affect the dynamics of spouses in mediation

proceedings that will likely disadvantage women. Women who are in
weaker bargaining positions or are disempowered may not be able to
assert their views during negotiation. Mediators/JDR judges have a
critical role in balancing asymmetrical power positions of parties in
family law cases.

Experiences in other countries warn of potential risks of mediation

proceedings that could erode women’s equality in rights. Although
they have different contexts, those experiences can inform
implementation of the family law mediation program in the
Philippines while it is yet in its nascent stage.

Literature on mediation 15 particularly raises concern about the

privatization of family law. In the Philippines where substantial gains
have been made in formalizing equality rights for women within the
family, this privatization may lead to the chipping away of these legal
rights through negotiated settlements that fall significantly below
equal standards set by law, such as on support and property
settlements.

The narrative data presented above illustrates how patriarchal

attitudes and gender stereotypes within families still persist despite
gains in women’s formal equality rights in private and public realms.
First, it is the women, not the men who claim for support, implying
that women are likely the ones who assume the greater burden of
supporting their families including children. Second, although it is
the legal obligation of men to support their families, compliance with
this obligation can turn into a power play at the expense of women.
Non-disclosure of financial resources by parties, or non-enforcement
of compromise agreement are among other problems linked to
privatizing family law.

Privatizing family law matters like support, custody, guardianship or

property settlement leaves no safeguards against women from

14
Observation made by the CEDAW Committee. Concluding comments of the Committee on the
Elimination of Discrimination against Women: Philippines CEDAW/C/PHI/CO/6 25 August 2006
15
Goundry,S, .A., Peters, Y., Currie, R. etc , Family Mediation in Canada: Implications for Women’s
Equality A Review of the Literature and Analysis of Data from Four Publicly Funded Canadian
Mediation Programs, (Canada:1998) at http://www.swc-
cfc.gc.ca/pubs/pubspr/familymediation/familymediation_e.pdf; Maxwell, Nancy G., "The Feminist
Dilemma in Mediation" . International Review of Comparative Public Policy, Vol. 4, No. 1, pp. 67-84,
1992 Available at SSRN: http://ssrn.com/abstract=963192;

.
146 Gender and Mediation

negotiating below their legal entitlements. This possibility is greater

when women are not aware of their legal rights, and may be
compounded by the promotion of interest and value-based resolution
over parties’ rights in negotiation. Relegating family law cases to the
realm of the “private,” outside of public scrutiny and without
documentation can reinforce social inequities. Resolution of family
law-related conflict through mediation can render parties’ agreement
as ‘second-hand justice,” or the mediation as a lesser forum.
Narrative data shows preference of disputants for JDR and having the
JDR judge as mediator because s/he is perceived to be “more
authoritative.” The authority seen in a JDR judge apparently mitigates
the ‘second hand’ justice that disputants could have from the
mediation process.

Without universalizing the oppression and discrimination of all

women, these programs can be informed by data that may show that
women more than men are likely to be disadvantaged or be
discriminated against within the justice system, including in family
law-related mediation proceedings.

Physical injuries and/or wife battering is the most prevalent,

accounting for 58.5%, of all reported VAW cases nationwide from
1999 to 2006. Although on a decreasing trend, these figures may not
reflect actual incidence as they pertain only to physical and wife
battering cases reported to the police. 16 It is therefore not unlikely
that domestic violence figures in and is implicated in family-law
related mediation cases; and that it is women more than men who are
victims of violence in the family and in intimate relationships. How
does domestic violence affect the dynamics in mediation between
spouse-disputants or among family members? How does domestic
violence affect these disputants’ agency and capacity to negotiate a
settlement equal to or close to their legal entitlements?

Screening for domestic violence is one response of family law

mediation programs in other countries, although this mechanism is
also criticized for its ‘faulty” and difficult implementation. The
JURIS Project’s ADR Toolkit for Mediators includes a similar
screening mechanism in the guidelines recommended for mediators.
It may need a comprehensive research on this aspect of family law
mediation to identify what policy is appropriate to address problems
related to domestic violence. 17

16
NCRFW Factsheet Filipino Women Mar. 2008.
17
See e.g. Gerencser, Alison E., FAMILY MEDIATION: SCREENING FOR DOMESTIC ABUSE
at http://www.law.fsu.edu/Journals/lawreview/issues/231/gerencse.html
 Gender and Mediation 147

The stories earlier of Flor, Mona and Marie show how their CAM
experience proved positive and empowering for the women. Women
certainly are not a homogenous group nor are men, as asserted in a
previous section. Neat or full-proof generalizations about capacities
and attributes of and effects of CAM proceedings on neither can be
easily made nor be accurate reflections of reality in individual
situations.

Family law mediation programs nonetheless should have safeguards

to protect parties likely to be disempowered and disadvantaged. This
holds not only for women (or particular groups of women) but also
for other collectivities who may be likely disadvantaged in CAM for
different reasons and on different grounds.

c) CAM Process and Outcome

(1) Prior Information on CAM

Women disputants, according to the Womenlead study, “go through

mediation with little information about the process. xxx More than
half of (survey) respondents (57%) learned about mediation during
the first day of hearing in the court. Some learned about mediation
before the filing of their case (18%) and after talking to their lawyers
(16%).”

Women disputants have different reactions when they first heard

about mediation. Respondents positively accepted the process by
saying that they felt happy (28%) and ‘ok lang’ (2%). Some (21%)
said that they felt happy because mediation can help the parties to
discuss and solve the case among themselves. Only 4 percent of the
respondents said that they reacted positively because they understood
the process and they learned that mediation means lesser legal
expense.

More than half of the respondents however initially reacted

negatively towards mediation. Women disputants said they were
confused (26%), afraid (16%), annoyed (14%), nervous (3%) and
ashamed (2%). Some of the respondents (11%) also said that not
knowing much about mediation and its process caused their negative
reactions.
The ADR study’s community survey to gauge awareness on CAM
covered 308 respondents in La Union and Pampanga who were
randomly selected within the 1 kilometer radius from the PMCs.
148 Gender and Mediation

Although the male respondents are largely unaware of mediation

(95%), 99% of all female respondents (who comprised 53% of all
survey respondents) said they were not aware of mediation.(Guillen
2007)

Prior information about mediation helps disputants to accept it. The

Womenlead study found how inadequate knowledge of the CAM
process evoked varied emotions among survey respondents and
affected how they communicated and negotiated, according to some
respondents. Community awareness strategies could work when
effective means of reaching the people are employed. Possible
gender-based differences in respective roles, tasks, and routine can be
studied to develop these strategies so that people in the community
can have equal opportunity of access to mediation-related
information.

(2) Disputants as the Key Actors in the CAM Process

i. Factors affecting participation in mediation

Individual/Family circumstances

Women respondents in the Womenlead study identified factors that

affect their attendance in and their communication and negotiation
during the CAM.

The most common problem women encountered in mediation was

‘economic loss’ (61%) brought on by their inability to take official
leave from work in order to participate or attend mediation. The lack
of child care and family matters was also identified as a problem
(28%) along with the inability to hire counsel (34%) and fear of failed
mediation, litigation, and lack of privacy during mediation (32%).

Women answered that these problems affected their expression of

feelings during mediation (66%), as well as the expression of opinion
(55%). Nearly half (49%) of the respondents said it affected how they
were able to negotiate the terms of their agreement and how they
dealt with the other party (49%). By contrast, only (12%) responded
that having these problems affected the way they dealt with
mediators. Likewise, only (26 %) thought it affected the results of
mediation.
 Gender and Mediation 149

Thirty four (34) percent of the respondents said that these problems
affected their willingness to compromise and (32%) said it affected
the final implementation of the agreement.

The Womenlead study concludes from these findings that:

“(w)hile the problems the women identified are easily related to
societal roles (being in charge of children, taking care of the home
and family matters and working to support the family), they were
not necessarily articulated nor identified as problems or issues
associated with ‘gendered relations of power,’ or even ‘gender
inequality.’ The fact that these ‘problems’ lie somewhat outside
the system (court and mediation) means women rarely relate them
to their cases.”

ii. Gender-based stereotypes, attitudes, and expectations

The Womenlead study found that ‘social constructions of gender are

shared by all parties to mediation.” These manifest in different ways:

• Views about differences between women (talkative, more

expressive, emotional), and men (more quiet, less emotional,
easier to deal with during mediation); or about the situation of
disputants.

• Views about differences between male and female mediators and

judges

- women mediators are more approachable and ‘open’ to

displays of emotion than male mediators who maintain a
distance from the parties.”
- women are more “patient’, and ‘strict’ than men .
-women are more kind (65%) than men (59%)
-men are more fair (55%) than women (45%).

• Reasons for preferring mediators of a particular sex

‘‘women litigants are more comfortable with women

mediators’
“ (our) cases involved facts that ‘only another woman (or a
mother) can understand.’
150 Gender and Mediation

• Understanding of sex equality under the law -

“ ‘That’s what they say about law, that all of us are equal
but we should be more lenient with women considering
that they are considered as the weaker sex.’ “

• Effects of gender biases

Gender bias can sometimes affect the outcome of a case, such as

one case involving siblings and their inherited land. The
Womenlead study cites as example a case in which the brother
insisted that his sister had no right to the agricultural land since
women do not till. The case could not be settled on account of this
gender-biased belief.

It could also affect the communication during the mediation process.

The process observations conducted by Womenlead’s research team
showed that mediators could address only male parties, or that a male
relative (who was not even a party to the case) could silence the
daughter-disputant.

Mediators interviewed think that a lot of women litigants are very

assertive and aggressive. (“liberated”) One of the female
mediators pointed out that some women feel intimidated if the
other litigant is a male. One of the male mediators said that most
women litigants from rural areas feel threatened. They are usually
uneducated and it is hard for them to open up. Educated women
are more confident. (Womenlead study 2008)

The Womenlead study concludes that “(t)hese observations further

reflect that the assumptions about gender differences including
preferences about the gender of the mediator are held in common by
mediators, judges and the women disputants. In a way, these operate
as expectations upon which both the parties, mediators and the judges
react or respond to.”

Narrative data shows that CAM and JDR practitioners are likely to
encounter situations that bring to fore the need for awareness of and
responsiveness to gender issues in CAM proceedings.
One mediator stressed that gender sensitivity is not only a matter of
being on the lookout for ‘gender based power imbalance’ but it also
involves catching yourself making these gendered assumptions. The
mediator shared that she used to believe the generalization that
 Gender and Mediation 151

women are more talkative than men until she encountered a case
where the father wouldn’t even give his daughter the opportunity to
talk in a case which involved her as a party. (Womenlead 2008)

iii. Openness of both parties, cooperation

A mediator observed that it is easier to reach an agreement if the
litigants are of the same gender. He also pointed out that women
litigants are easier to deal with than male litigants. Women are
more respectful and tend to forgive easily. They are more
receptive to helpful suggestions. Male litigants tend to have a
domineering attitude and bring their “macho” culture into the
mediation proceedings. They are combative and feel like fighting
it out –“Kung galit, galit. Kung bayad, bayad. Some male
litigants even harass their female opposition. (Womenlead 2008)

iv. Relationships and Power Imbalance

The ADR study found that perceptions of power imbalance appear to

be more prominent in certain cases, e.g., ejectment, which also
belongs to the highly contentious issue of land ownership in the
country. However, when power imbalance in mediation is related to
women and workers, few recognize its relevance. Again, looking at
the cases brought to mediation in the five sites, these do not typically
represent women as the disadvantaged party, compared with cases of
sexual harassment, or violence against women. Similarly, counsels,
court personnel and even judges in the five sites find that in general,
gender has not been a major issue in their experience. Also, cases
involving workers comprise civil cases, e.g., reckless imprudence,
slight physical injuries, oral defamation, etc., and are not labor-
management in nature.

Though majority identified an association with their opponent, only

35% perceive power Imbalance in their relationship. … A
predominantly gender-based relationship (man-woman) is
acknowledged by only 5% when majority of the litigants involve
women.

42% of those who perceive power imbalance in their dispute with the
other party agree that mediation helped in addressing the issue and
feel that the openness and informality of mediation largely helped in
neutralizing the inequality between parties. However, some also feel
that mediator should have exerted more effort in addressing the issue.
152 Gender and Mediation

The Womenlead research report states that “(t)here is no single

picture of how gender structures power relations in mediation.”

The results reveal that while gender and the attitude of both
parties and the mediator. can structure power relations in
mediation, women disputants (are) likely to understand ‘power
relations’ during mediation in relation to the other mediation
party, the presence or absence of private counsel and the nature of
the case. For example, although mediators stated that women
disputants were not treated differently from men, mediators did
acknowledge that some parties have more difficulty than others
in expressing themselves and that this could be a factor of various
things such as ‘pride,’ ‘embarrassment,’ (especially in cases of
slander), ‘educational status,’ and ‘economic status,’ as well as
the ‘presence of legal counsel.’
Aside from relationship, other factors affecting mediation identified
by respondents in the Womenlead study are: educational attainment,
influence or ‘connections’ with influential and well known
personalities, and difference in economic situations. Another problem
is inability to hire private counsel. Respondents considered that not
having a lawyer has resulted in among others: their being forced to
agree with the Compromise Agreement, and in their being unable to
question the credibility of the judge’s decision on their case. For
them, the presence of counsel “ensure(s) that someone can defend
their case , give advice on their case, the other party is penalized
according to existing laws (6%), help in preparing their affidavits,
and, (3%) and help explain their rights.”

Women respondents on the other hand, expressed a preference for

counsel not to be present during mediation or least for it to be led by
the parties, and for legal counsel (when present) only to assist and
give advice to the disputants.

d) . Justness and Fairness of the CAM Process and Outcome/ CAM’s

contribution to access to justice by marginalized sectors, and to
access to justice by women .

(1) Justness and Fairness of the CAM Process and Outcome

The open and informal setting of CAM accounts largely for the
perceived justness and fairness of the process

Litigants see CAM/JDR as a novel way of settling disputes and

welcome the openness and informality of the process where they can
 Gender and Mediation 153

freely discuss their dispute with the other party. For the ADR users,
this facilitated not only the settlement of cases but also the mending
of relationships especially among neighbors involved in civil cases.
This, for them, is more preferable than formal court litigation where
counsels are the ones more directly engaged in the process than the
litigants. (Guillen 2007)

Mediators and women disputants both emphasized the ‘freedom’ in

mediation to ‘talk about everything,’ that is, to define the issues in the
parties’ own terms rather than in legal terms. Mediators
acknowledged that women disputants seem to find ‘validation’ and
have a sense of ‘importance’ (feel they are bida) in mediation. The
women disputants expressed both relief and satisfaction that
mediation gave them the space and opportunity to ‘be listened to,’
‘express their feelings,’ and that they felt ‘freer’ to say what they
wanted. (Womenlead 2008)

Perceptions of just and fair outcomes in CAM on the other hand was
linked by disputants to the settlement or non-settlement of their
disputes. The ADR study notes that

When compared to the fairness and justness of outcome, the survey

respondents did not agree as much as they did with the fairness and
justness of the mediation process, though they also represent the
proportion of cases that settled. Looking at the number of responses
under the settled and not settled cases categories, more respondents
with cases settled under CAM/ JDR (213 or 65%) agree that there is
fairness/ justness in the outcome of mediation. Respondents with
cases that were not settled under CAM/ JDR comprise only 35% of
those who agree that the outcome of mediation is fair and just.

Conversely, more respondents with cases not settled (75 or 66%) do

not agree that the outcome of mediation has been fair/ just,
respondents with cases settled take up 34% (39) of those who do not
agree. To a certain extent this goes to show that where cases are
settled under mediation, its users are more likely to agree that its
outcome is fair and just.

This correlation between the positive outcome of mediation and

perception is also seen in the Womenlead’s case study on support.
For the three women claimants, mediation is a “way of asserting and
claiming rights and attaining justice.”
154 Gender and Mediation

Mediation, for the three women, opened a way to assert and claim
their rights. Being able to speak openly and directly to the other party
was part of the process. For Flor, mediation opened a venue for her to
talk about her husband’s abuse and neglect. Through the mediation
process, her husband asked for forgiveness and a settlement was
reached. Flor was able to claim her rights and also that of her
children. For Marie, mediation softened the ground for the next step –
judicial dispute resolution – where her husband relented and agreed to
pay damages for the crime he committed. In both cases, the women
believe they have attained justice.

The case of Myrna (Womenlead 2008) shows that the open

‘mediation space’ and the direct communication between parties that
it allows can outweigh the unsuccessful outcome of a mediation
proceeding.

Myrna was sued by her neighbor for violating BP22. After four
mediation sessions, she and the other party did not reach a
compromise agreement and the mediator concluded the proceedings.
For Myrna,

mediation was an enlightening process, … even when it did not result

in a settlement….
Despite the outcome, she expressed that she would still recommend
mediation to other women litigants, especially now that she is
experiencing the inconvenience of having to attend numerous court
hearings. Besides, she observed that in the mediation proceedings, she
was freer to talk and she could confront Heidi directly.

The JDR study also found that JDR judges and the JDR process are
widely perceived to be fair, and stakeholders are satisfied with JDR
outcomes. 18

(2) CAM’s contribution to access to justice by marginalized sectors,

and to access to justice by women .

18
Perception of fairness of judges and the JDR process is very strong among all stakeholders groups
across all regions (Table 12). All the judges obviously believed in their neutrality and impartiality, and
the lawyers and litigants largely agreed, except for Baguio where litigants raised a serious question in
this regard with almost half expressing disagreement.
All stakeholders expressed satisfaction with the outcomes attained using JDR, although judges are the
most satisfied stakeholder group (with 96% agreeing or strongly agreeing that the outcomes are
satisfactory), followed by lawyers (88.5%) and then by litigants (85.7%). But support is not even across
all regions with litigants in Bacolod and Baguio expressing dissatisfaction (80.8% and 38.5%
respectively). (JDR study 2008)
 Gender and Mediation 155

Complementing findings of satisfaction with CAM and perceptions

of the justness and fairness of the CAM process and outcomes are
findings on perceptions of CAM’s contribution to access to justice by
marginalized sectors and by women.

The ADR study found that 76% of survey respondents perceived that
CAM/JDR contributed to ordinary citizens/marginalized sectors’
access to justice. This figure markedly dropped to 27% however
when the question was CAM/JDR’s contribution to women’s access
to justice, and 59% of respondents said they are “not aware” of
whether or not CAM/JDR contributed to women’s rights. The ADR
research report concludes that this expressed unawareness could be
attributable to the disputants’ view that that these issues are not
related to their cases, e.g., reckless imprudence, partition, etc.

It was revealing from this study that respondents’ perception of

CAM’s contribution to access to justice is linked to two distinctive
elements of court annexed mediation: openness and informality of the
setting and process; and capabilities and attitude of mediators/JDR
judges. Cost and time efficiency factors associated with CAM did not
rate as high as these two elements, nor did they rank at all in respect
of factors contributing to access to justice by women. 19

( 3) Implications

These findings highlight how critical it is for the promotion of the

access to justice objective of CAM to maintain the openness and
informality of the CAM process, and to establish safeguards so that
disputants come into this open and informal space with relative
agency to engage and negotiate with each other. The role of and the
19
“ As for the factors that contributed to access to justice by marginalized sectors, the litigants rank
them accordingly: (Guillen et al at 18)
(23%) Time spent in mediation (2 months)
(22%) Cost of mediation (PhP 15,638.00)
(20%) Open and informal setting of the mediation
(30%) Capability and positive attitude of the mediator, judge and court personnel.
In order to determine the gender responsiveness of mediation in the pilot sites, this factor included a
question on the mediator, judge and court personnel attitude towards women litigants, i.e., whether this
facilitated an encouraging mediation process for women in settling their disputes.18% of the respondents
find this factor contributing to the marginalized sector’s access to justice) (5%) Positive attitude of
counsel (did not hinder the mediation process
On the other hand, litigants rank the following factors as contributing to women’s access to justice :
(Guillen et al at 19)
(39%) Open and informal setting of the mediation
(55%) Capability the mediator, judge and court personnel; 23% out of the 55% find that positive
attitude of the Judge toward women contributes to women’s access to justice;
(5%) Positive attitude of counsel (did not hinder during mediation)
(1%) Positive attitude of judge during JDR
156 Gender and Mediation

capabilities and attitude of mediators/JDR judges, as these findings

validate, is central to managing the CAM process – supporting
disputants to be ‘enabled’ negotiators, ‘and correcting imbalances that
could skew the relatively equal playing field assumed in the CAM
process.

The social context/gender equality aspect of CAM therefore

incorporates an analysis of factors that can strengthen or undermine
disputants’ assumed agency and their bargaining leverage in
negotiation. This analysis, nuanced by the social constructionist
thinking, examines the politics of and dynamics in the control of
meanings in the CAM process, and considers the potential of
narrative mediation as an alternative approach. 20 Probing questions
in the following areas can be part of this analysis.

o Are there gendered perspectives on communication and

negotiation that are reinforced in the orientation of new CAM
practitioners?
o Do these perspectives play out in CAM proceedings?
o What biases or stereotypes based on gender or other status and
condition manifest in the CAM process and how are these
stemmed?
o What strategies do disadvantaged disputants adopt in CAM to
assert their agency or to strengthen their bargaining position?
Are these strategies recognized in and supported by the CAM
program and during the CAM process?
o Are there appropriate and adequate guidelines to help
mediators/JDR judges in their managing, facilitative and
corrective roles to ensure the openness and informality of the
CAM setting?
o How are these roles balanced with the neutrality and
impartiality expected of CAM practitioners?

Specific strategies can be directed at the practice of CAM although

this will need to be complemented by those that address the CAM

20
See e.g. Winslade, John M. Mediation with a focus on discursive positioning, October 2003. at
(Unpublished) http://narrative-mediation.crinfo.org/documents/mini-
grants/narrative_mediation/Mediation_with_a_Focus.pdf. Winslade argues in favor of social
constructionist perspective over the dominant problem solving mode. This perspective focuses on
“power relations and how they are constructed in discourse; ” discourse referring to the “process of
conversation, written and spoken, by which human beings trade in meanings.” It recognizes the politics
of control of meaning in mediation and how dominant discourses can be used to legitimate claims of
entitlement or to de-legitimatize others. He proposes narrative mediation whose goals are to: (a) a) create
the relational conditions for the growth of an alternative story; b) build a story of relationship that is
incompatible with the continuing dominance of the conflict; and c) open space for people to make shifts
in discursive positioning.
 Gender and Mediation 157

design including its substantive foundations. Approaches can be

theoretical, i.e. evolving expansive perspectives and analytical
frameworks; and, programmatic, i.e. adopting and applying these
perspectives in various aspects of the CAM program, design and
practice such as the following:

(a) defining the range of mediatable cases;

(b) enhancing the orientation curriculum for new CAM
practitioners including in components on CAM philosophy
and principles, communication, and negotiation; 21
(c) formulation of guidelines setting standards in CAM
practice, 22
(d) creating and establishing safeguards like screening for
domestic violence and nuanced techniques for ‘correcting
power imbalance; or
(e) strengthening the organizational framework including
monitoring and evaluation system for CAM.

These strategies all aim to ensure that CAM affirms and promotes
access to justice and the rights especially of those more
disadvantaged including the ‘invisible’ and minority groups or
collectivities.

5. Concluding Note

The foregoing findings affirm the contribution of CAM to access to

justice by marginalized sectors and women and show stakeholders’
perception of the justness and fairness of CAM process and
outcomes. Narrative data tell of stories of disputants’ empowerment
and of relationships restored.

21
The Gender Dimension of ADR study notes as example that “(i)t is not enough for mediators to
undergo gender-sensitivity trainings, which in its present common form, do not go beyond discussing
gender-stereotyping and gender roles.” Resonant of the rights framework that this paper bats for, it
recommends that “ mediators should be trained on the rights-based approach, i.e., rights of litigants
during the different stages of the process are recognized; and their duty as state agents to protect and
promote these particular rights is affirmed.”
22
This relates to a recommendation of the JDR study that states as follows:
Clarification/modification of JDR guidelines - In order to enhance fairness in JDR outcome and
stakeholder satisfaction, we suggest the clarification, to be incorporated in JDR guidelines and in
training modules, of the judges’ role in JDR, with emphasis on (i) ensuring that appropriate time and
effort is spent at the start of the proceedings to carefully explain the nature and purpose of JDR; (ii)
timeliness and appropriateness of the use of particular approaches to resolve different situations, rather
than the use of a single approach or technique for all types of disputes; (iii) issues pertaining to power
imbalance identification and correction; and (iv) the role of counsel in JDR, i.e., whether the presence of
counsel is voluntary or mandatory, the extent to which the lawyer is expected to involve himself in the
client’s decision-making process, the extent of involvement of counsel in the various stages of the JDR
process, and similar issues. (JDR study 2008)
158 Gender and Mediation

The question then is not mediation or court adjudication that critics

like Owen Fiss are wont to take. Fiss (1985) generally condemned
settlement (i.e. mediation) for “its reliance on bargaining and
acceptance of “inequalities of wealth as an integral and legitimate
component of the process.” Adjudication is preferable because of its
“use of accountable public officials seeking to explicate and give
force to the values embodied in authoritative texts such as the
Constitution and statutes,” rather than the intervention of strangers
chosen by the parties to “simply secure the peace.” 23

Without dismissing the meritorious caveats that criticisms like those

of Fiss offer, this paper chooses to end instead with a challenge:

How can the court-annexed mediation TRULY serve and continue to

serve as a forum in which justice and rights are promoted especially
of the disadvantaged and marginalized groups and collectivities?

23
Owen Fiss, Against Settlement, 93 YALE L.J. 1073, 1085 (1984) cited in Coben, James, GOLLUM,
MEET SME´AGOL:A SCHIZOPHRENIC RUMINATION ON MEDIATOR VALUES BEYOND
SELF-DETERMINATION
AND NEUTRALITY, at http://www.cocjr.org/vol5no2/CAC202.pdf
 ABOUT THE AUTHORS

ANDREW MICHAEL S. ONG

Mr. Ong received a B.S. Architecture from the University of San

Carlos and an L.L.B. from the University of the Philippines. He
placed No. 1 in the government licensure examination for
Architecture and No. 6 in the Bar Examination.

He is currently the senior partner of Ong Villamor & Fabiosa Law

Firm, which is a boutique intellectual property law firm based in
Cebu, Manila and alliance offices in 12 jurisdictions in Asia. Aside
from his patent and trademark law practice, Mr. Ong consults with
the Philippine Judicial Academy in connection the court-initiated
mediation initiative of the Supreme Court. He was first involved in
the appellate court mediation program as a Mediation Specialist, from
EGTA, USAID, where he assisted in drafting the Supreme Court
guidelines for, and supervised the implementation of the mediation
pilot project for the Court of Appeals. In the past 5 years, Mr. Ong
was appointed as the Project Administrator of the Justice Reform
Initiatives Support Project to initiate and manage the ADR model
courts practicing court-annexed mediation as well as judicial dispute
resolution.

Mr. Ong teaches intellectual property law and alternative dispute

resolution in the College of Law in the University of San Carlos, and
is currently heading an IP advocacy group – I.PRrotect.

PROF. ALFREDO F. TADIAR

PROF. ALFREDO F. TADIAR is considered as the “Father of

Alternative Dispute Resolution (ADR) in the Philippines”. His legal
career spans 53 years which officially began when he topped the bar
(13th place), in 1955. As a law practitioner, he was appointed as the
youngest trial judge at the age of 29. Graduating Ll.M with
distinction from Harvard University, he became a UP Law Professor,
teaching Remedial Law and Criminal law for more than 20 years. As
Director of the UP Office of Legal Aid, he authored the Law Student
Practice Rule (138-A) and the Katarungang Pambarangay Law. He
was also the pioneering Chair of the government panel that
successfully negotiated peace with military rebels. He served as the
Chair of the National Amnesty Commission that facilitated the
160 About the Authors

granting of amnesty to 25,000 rebels. As the first Chair of the ADR

Department of the Philippine Judicial Academy, he led the revision of
the training curriculum for mediators in trial courts and the Court of
Appeals. He authored the Implementing Rules of the OGCC and the
Revised Rules of Construction Arbitration and shifted training
methods to the more effective exercise-based and skills-building
andragogic methodology.

IMELDA D. GIDOR

Atty. Imelda D. Gidor is a staunch advocate for children/women

rights and in recent years, for alternative dispute resolution (ADR),
which gave her the opportunity to bring the law “closer” to the
people, either as resource person, training faculty, or through
development of training modules.

As a Supreme Court-accredited mediator, she has contributed

significantly to the Justice Reform Initiatives Support Project
(JURIS) - Court-Annexed Mediation (CAM) Program. She is a
practicing mediator in the Philippine Mediation Center-Bacolod Unit.
She also serves as a resource person in trainings, workshops and
similar fora in Bacolod City, Baguio City’s JURIS-CAM Basic
Mediation Course in 2006, and in the Lawyer’s Orientation &
Workshop in La Union, Baguio City and Cagayan De Oro City, also
in 2006.

Now a practicing lawyer based in Bacolod City, she is a magna cum

laude alumna of the U.P. School of Economics (1990). After working
at the National Economic & Development Authority (NEDA), Pasig
City, as an Economic Development Analyst, she completed her
Bachelor of Laws (1996) at the U.P. College of Law.

CAROLYN A. MERCADO

Carolyn A. Mercado is a senior program officer with The Asia

Foundation in the Philippines. In this position, she manages the Law
and Human Rights program. She assists in the development,
implementation, monitoring, and evaluation of other selected
activities within the Foundation's Law and Governance program and
handles mediation and conflict management, and other forms of
dispute resolution processes. She also served as a temporary
consultant to the Asian Development Bank on the Strengthening the
 About the Authors 161

Independence and Accountability of the Philippine Judiciary project

and the Legal Literacy for Supporting Governance project.

Prior to joining the Foundation, Ms. Mercado was an intern with the
Center of International Environmental Law in Washington. She also
served consultancies in Manila for the World Bank, the United
Nations Development Programme, the International Maritime
Organization, NOVIB, and the Philippines’ Department of
Environment and Natural Resources. She has served as lecturer on
environmental law at Ateneo de Manila University, San Sebastian
College of Law, and the Development Academy of the Philippines.
She also served as Executive Director of the Developmental Legal
Assistance Center, Corporate Secretary of the Alternative Law
Groups, and as a legal aide to a member of the Philippine Senate.

She obtained her BA in Political Science and LL.B. from the

University of the Philippines. She was also a Hubert Humphrey
Fellow in International Environmental Law, University of
Washington and a European Union Scholar in Environmental
Resource Management, Maastricht School of Business in the
Netherlands.

DAMCELLE TORRES-CORTES

Damcelle Torres-Cortes is a Program Officer of The Asia Foundation

Philippines. In this capacity, she assists in the management of the
Foundation’s law and human rights program, including development,
implementation, monitoring, and evaluation of court-annexed
mediation (CAM) and other alternative dispute resolution (ADR)
projects. She is a volunteer lawyer in a weekly radio program
popularizing ADR and laws on women and children. She is co-author
of two books on gender jurisprudence and has engaged in intellectual
property and litigation practice. Previously, she served as a Senate
Legislative Officer, contributing to the drafting of the Juvenile Justice
Law and in the review of the ADR Law Rules. Atty. Torres-Cortes
was former Commissioner for the Youth of the National Commission
on the Role of Filipino Women. She received her Bachelor of Arts in
Social Science from the Ateneo de Manila University and Bachelor of
Laws from the University of the Philippines.
162 About the Authors

SALVADOR PANGA, JR.

Atty. Salvador Panga, Jr. has been involved in Alternative Dispute

Resolution work for the past decade. He graduated from the UP College of
Law and obtained his LL.M. in Dispute Resolution from the University of
Missouri-Columbia in 2001. Subsequently, he completed an internship at
the ICC International Court of Arbitration in Paris. From 2004-2006, he was
the ADR Postgraduate Fellow at the Dispute Resolution Institute of the
Hamline University School of Law in Minnesota, where he played a key
role in the design, development and management of Hamline’s ADR
programs in Rome, Paris, London, Bilbao and the United States.

Currently, he is a senior partner at Parlade Hildawa Parlade Eco & Panga

(PHPEP), a law firm specializing in arbitration and ADR. He is also the
Secretary-General of the Philippine Dispute Resolution Center and has been
a consultant in many initiatives to develop ADR in the Philippines.

Atty. Panga is admitted to law practice in the Philippines and in New York.

MARIA RODA L. CISNERO

Maria Roda L. Cisnero is a Legal Officer of the Legal Assistance Center for
Indigenous Filipinos (PANLIPI), a non-profit/non-governmental
organization established in 1985 which pioneers and continues to engage in
development work among indigenous peoples of the Philippines. PANLIPI
is one of the pioneer members of the Alternative Law Groups.
Concurrently, she is also the Local Action Researcher for the model courts
in Baguio/Benguet and La Union for the Justice Reform Initiatives Support
Project.

MRLC stumbled upon developmental work and alternative lawyering at the

Ateneo Human Rights Center, where she interned during law school. She
considers herself a continuing intern and student of law and thanks her
involvement in the JURIS project for opening doors that helped her pursue
her passion to learn the law while finding others ways and means to engage
the law to best serve the people.

ELEANOR C. CONDA

Eleanor C. Conda has more than 16 years’ engagement in the

promotion of human rights especially of women.

She headed or coordinated national, regional and international

feminist legal and women’s rights advocacy organizations and
networks. She sits in advisory boards and working groups of Asia-
 About the Authors 163

Pacific and international networks promoting women’s human rights,

and campaigning on women and conflict-related and other issues.

Eleanor provides advisory and consultancy services to UNIFEM and

government agencies / organs in the Philippines and in other
countries in Asia on CEDAW-based law reform, capacity
strengthening for human rights treaty compliance, and strategic
direction setting.

She is currently the gender equality adviser of the JURIS Project, and
the human rights and legal specialist in a 4-country review of national
human rights institutes’ role in strengthening human rights protection
of domestic workers and migrant workers in irregular situation.

Books and papers that she has authored or co-authored are on themes
as human rights of women, framework for strengthened CEDAW
implementation, and gender-responsive lawmaking.

Eleanor finished her law degree in 1989 from the University of the
Philippines. She holds also degrees in Master in Business
Management from the Asian Institute of Management (1981) and in
Bachelor of Arts in Economics from the Divine Word College of
Legaspi (1978).
 ANNEX

PARTIAL LIST OF GOVERNMENT AGENCIES PRACTICING

MEDIATION

AGENCY TEL.NO / WEBSITE RULE

Commission on the 9291123 -Commisioner’s

Settlement of Land Office COSLAP Rules of Procedure
Problems (COSLAP) 9297324 – Legal Department

Cooperatives 7258536 – Legal Dept. Board Resolution No. 60, series 2006: Revised
Development Authority www.cda.gov.ph Procedures for Mediation and Conciliation at
(CDA) the Cooperative Level

Department of Labor www.nlrc.dole.gov.ph

and Employment www.ncmb.dole.gov.ph
(DOLE)

www.dti.gov.ph
Dept. of Trade and Rule 10, DAO 7, Series 2006: Simplified
Industry (DTI) Uniform Procedure for Filing Cases with DTI

Housing and Land (02) 9243367 – Legal Resolution 802, series 2007: Amending Rules
Use Regulatory Board www.hlurb.gov.ph III & X of 2004 Rules of Procedure to
(HLURB) Incorporate Rules on Mediation

(02) 5328462 to 70
Insurance
Public Assistance and
Commission (IC)
Information Division

National Commission Administrative Circular 1-2003: Rules on

(02) 3745951 – Legal
on Indigenous Pleadings, Practice and Procedures Before the
Atty. Dunuan
Peoples (NCIP) NCIP

Office of the
Rules 10-12, Implementing Rules and
Government www.ogcc.gov.ph
regulation of the Office of the Government
Corporate Counsel
Corporate Counsel
(OGCC)

Presidential
(02) 4104691 – Legal
Commission for the
Ms. Belen Alansalon
Urban Poor (PCUP)