Saint Louis University

Bonifacio St., Baguio City

Efficiency and Problems in Alternative Dispute Resolution:

A Three-Point Perspective

ABELLO, Jon Rey F.

BALANAY, Bee Jay S.
OCAMPO, Vincent Ray Miracle G.
TAMAG, Johnlen U.
CORNEL, Kria Lynne J.
LORENZO, Jan Rhea A.
PISCO, April Nicole P.
SOMERA, Joanna C.

Lawrence Dexter D. Ladia

Research Promoter
CONCILIATION AND MEDIATION: EFFICIENCY AND PROBLEMS 2

Abstract

The main problem of this study is to provide a phenomenology of the third function of the
Commission on the alternative dispute resolution. The study made use of the qualitative
descriptive case study using an in-depth interview with nine participants from three different
sectors. Results showed that ADR is an efficient mechanism providing alternatives in the aspects
of economic, emotional sphere, and indirectly helping in the decongestion of cases in the courts.
However, problems affecting the processes are also present - pride and willingness to cooperate
among others were identified. Therefore it is recommended for an establishment of an office
within the Commission dedicated to cases which can be subjected to Alternative Dispute
Resolution, and conduct information dissemination campaigns through their promotional
activities and in the process, cooperating with different governmental institutions and non-
governmental organizations.

Keywords: Alternative Dispute Resolution; Economic, Social and Cultural Rights;

Phenomenology; Conciliation; Mediation

Background of the Study

Alternative Dispute Resolution (ADR) practices are not new, and societies worldwide
have been using non-judicial, indigenous methods to resolve disputes. These practices is
relatively new in extensive promotion and proliferation of it being widely used in court-
connected, and the increasing use of ADR as a tool for achieving broader goals than the
settlement of specific conflicts.

Alternative Dispute Resolution System means any process or procedure used to resolve a
dispute or controversy, other than by adjudication of a prestige judge of a court or an officer of a
government agency (Alternative Dispute Resolution Act of 2004), in which a neutral third party
participates to assist in the resolution of issues. This includes mediation and conciliation. Simply
the ADR refers to any means of settling disputes outside of the courtroom.

In the Philippines, ADR methods can be traced as far back as the barangay and other
forms of village governments before the Spaniards came in 1521 (Lopez, 2004). In these early
days, the datus used to settle disputes of their constituents, and their decisions were invariably
accepting as having authority and finality. Moreover, one of the customs of the inhabitants of the
country is that people submit to the decisions of the elders as well, respected it and carried it out.
Further, conflicts and disputes in the locality are greatly affected by the decisions made by the
elders. The elders who are abundant in knowledge about the customs as well as the tradition of
their locality surmise the active use of the alternative dispute resolution.

On the period of Spanish colonization, the tradition of settling of disputes through their
leaders and elders changed. Discontented parties had to resort to going to the courts establish by
the Spaniards to different cases. By going to this courts, it was more costly and drawn-out and is
continued towards the present.

On the other hand, contemporarily, still many Filipinos readily overcome conflict through
pragmatic means. This is seen in the culture of pakikisama (Lopez, 2004). It is defined as
CONCILIATION AND MEDIATION: EFFICIENCY AND PROBLEMS 3

maintaining interpersonal relations by going along, it is the ability to be good and be a nice
companion. The culture of pakikisama. ADR is extremely appropriate in resolving certain civil
disputes, in particular small disputes among persons living in schools, workplace, urban quarters,
villages, and even families. In these cases, the main objective of ADR is not the achievement of
short-term solutions, but the preservation of the disputants relationships.

Another area where ADR is prominent in the country is seen in the barangay level. The
barangay is the smallest territorial and political unit in the country which evolved from a social
organization of kinships, and its survival depended very much on smooth interpersonal
relationships among community members. It was under the Marcos Administration (1972-1986)
that the nature of barangay changed extraordinarily. The barangay played a crucial role in the
recognition of ADR in the Philippines establishing the Barangay Justice System (BJS). Under the
Presidential Decree No. 1508, Establishing A System of Amicably Settling Disputes at the
Barangay Level, conflicts among residents of the same cities/ municipalities should first lodged
for mediation or in case this fails, for conciliation in the Barangay (Establishing a System of
Amicably Settling Disputes at the Barangay Level, 1978). The Katarungang Pambarangay or the
BJS was seen by the legislators as a means to decongest the courts dockets, by encouraging the
settlement of minor cases at the barangay level, which will in turn allow the courts to speed up
the adjudication of already pending cases.

Although the BJS was introduced a long time ago, relatively few people avail themselves
of this mode of dispute resolution. There are also very few lawyers and litigants who exercise the
implementation process. (Herrera et al, 2000) In addition, this problem is attributed to the
publics lack of information and awareness about the process, as well as the need for further
training the mediatiors.

Another sector in the Philippines wherein dispute resolution is employed is in the court.
In comparison to ADR, the Court-annexed Mediation (CAM) is a voluntary process conducted
under the auspices of the court by referring parties to the Philippine Mediation Center (PMC)
Unit for settlement of their dispute and the so called Judicial Dispute Resolution (JDR) is a
process whereby the person in charge engage in conciliation or mediation or early neutral
evaluation in order to settle a case at the pre-trial stage (What is Court Annexed Mediation, n.d.).

What is uncommon is the alternative dispute resolution in the Commission on Human

Rights (CHR). The said commission have 11 powers and functions all in all that can be found in
the Omnibus Rules of Procedure of the Commission on Human Rights Rule 2, Section 1. CHR is
an independent office primarily known for its investigatory power on all forms of human rights
violations involving civil and political rights in the country. It primarily handles the
investigations of human rights violations, however it has no power to resolve issues or the so
called power to prosecute.

However, what is unpopular to the many is that the commission also involves itself on the
protection of economic, social and cultural rights of the people. This is primarily done by giving
them legal advises as well as pre-trial recourses among other courses of action. This is under the
third function of the Commission which is the provision of preventive measures and legal
services to the underprivileged whose human rights have been violated or need protection.
CONCILIATION AND MEDIATION: EFFICIENCY AND PROBLEMS 4

Zeroing in further, preventive measures or ADR are herein provided as conciliation and
mediation, though, often interchangeable. These are ideal processes that want to deal not only
with minor human rights violations but primarily on handling involving civil, political,
economic, social and cultural rights.

Conciliation is a mode of settlement whereby the Commission or its representative, who

shall be a neutral party, encourages and/ or facilitates the parties in dispute to discuss their
differences and assist them in making their own solution and/ or reaching a mutual agreement or
consensus.

On the other hand, compared to conciliation, Mediation is a more active mode of

settlement in which the Commission or its representative, although on a neutral side, submits
proposals or recommendations for the possible settlement of disputes brought before it. Such
proposal is done when the parties in dispute cannot, on their own, reach a solution or mutual
agreement on the issue or issues in question.

The difference of the ADR under the Commission on Human Rights among other dispute
resolution mechanisms is quite motivating and noteworthy. First unlike the BJS, the mediator or
conciliator is actually a lawyer. A mediator/ conciliator who is trained to settle disputes and is
well-conversed and is an expert in the roundabouts of the law and the system itself. A human
rights lawyer that is able to help and assist the parties to settle on an amenable resolution. Unlike
the JDR or the mediation under the courts of the country, the ADR process in the CHR is a pre-
trial method, an upshot before a real case is filed to the court. It is a fact that some ADR
processes are useful for both resolving disputes that are not amenable to court-based resolution.
Moreover, it is less costly and more time efficient compared to the process done in the courts.

Compared to that of the Mediation Board, the Commission on Human Rights is actually
trying to stop a case from being filed, if not worth it. Much like that of what the Barangay level
is doing, the Commission on Human Rights could actually be more involved in the society
especially now that they have not been viewed in the most preferable way such a Commission
should be. While it is true that such a task shall not be handled by that specific institution, it is
also there already and that whats more rational to do is that to enhance and not pull them down.
With no disrespect to those who do not see through the good in the Commission, it could also be
a good thing to start dealing with things in the most human and reasonable way and that is to
report the wrong and appreciate whats right.

Review of Related Literature

Communication, negotiation, compromise has long been a practice amongst people, and
within institutions and organizations to resolve conflicts. This type of instrument to resolve
issues and problems was later referred to as Alternative Dispute Resolution, at least in the
Commission on Human Rights. Along with this developed another way of resolving cases and
that is the court with a judge to hear and render judgment later. The study seeks for to discover
how ADR processes conciliation and mediation plays out as an efficient mechanism in
resolving cases and identify factors, which may happen to impede or affect the purposes of these
CONCILIATION AND MEDIATION: EFFICIENCY AND PROBLEMS 5

processes. Several articles, researches, journals have been resourced to learn more regarding this
matter.

According to McGregors (2015) study Alternative Dispute Resolution and Human

Rights, the presumption that courts are the principal forum for dispute resolution continues to be
eroded. Alternative forms of dispute resolution (ADR), including agreement-based ADR (such as
mediation and conciliation) continue to proliferate and are increasingly institutionalized, leading
to its characterization as appropriate or proportionate dispute resolution (McGregor, 2015).
Two questions in which the International Human Rights Laws position remain unclear, these are
first, whether entered into voluntarily or mandatorily and second, the permissible circumstances
in which parties to a dispute can be required to use ADR/Proportionate Dispute Resolution
instead of, or before, accessing courts. This article sought to bring this vast theory on the
diversification and institutionalization of dispute resolution into IHRL (McGregor, 2015).

An article was written by (Das) about the government of Bangladesh propagating in favor
of the Alternative Dispute Resolution (ADR) due to a stockpile of cases. But still did not work
due to reasons such as existence of only few laws which have their drawbacks and are not
infrastructural facilities for ADR, no training for both judges and lawyers, absence of incentive
(i.e., appreciation for job well done), negative attitudes from a section of the public, lawyers and
even judges (Das).

The process might be harder on other countries that are not equipped or even backed by
culture to practice such processes. The point being that the Philippines culturally have traces of
such practices long before a legal or even universal term was created for such specifically among
the Cordilleran people. In the Cordillera, they have what they call as budong wherein disputes
are settled through peace talks. Thus, the public backlash and even the non-appreciation of
results by the people in the system themselves. But the problem also in the Philippines is that, the
justice system seemed unfit for the culture of the Filipinos.

In Gay R. Clarke and Iyla T. Davies Argument for and against the use of the mediation
process particularly in family and neighborhood disputes, it focuses on the importance of ADR
as a process. However, the paper does not aim to make mediation as a panacea for all types of
conflicts (Clarke & Davies, 1991). However if the advantages and the acknowledged
disadvantages and limitations of mediation would be weighted, it can be seen that there is a
definite, and it is hoped expanding role for the use of the process. In this case, the literature
states: people in the field of law and the community in general should be made aware of the
mediation process and of its use in many situations as it offers another choice and more freedom
of choice. However, the process would not remove the court from the dispute scene nor will it
make lawyers redundant (Clarke & Davies, 1991) . As some cases cannot be settled or mediated,
the process is not put forward as a cure-all but a worthwhile idea that can save people time,
money and a portion of the emotional turmoil that often accompanies adversarial proceedings
(Clarke & Davies, 1991).

A lecture by Jose Pascal da Rocha of Columbia University on The Importance of ADR in

Resolving International Disputes mentions several uses of ADR in context. First is in the context
of the Rule of Law which he mentions ADR to be used to supplement court reform, increase
CONCILIATION AND MEDIATION: EFFICIENCY AND PROBLEMS 6

popular satisfaction with dispute resolution system, and increase access to justice for sub-
dominant groups. Another non-specific context, ADR is used to increase Civic engagement and
help reduce level of tension and conflict and community. He also mentions conditions to be met
prior to success of the purpose of ADR. These are adequate political support, supportive
institutional and cultural norms, adequate financial resources and rough parity in the power of
the disputants.

According to Cheung (1999), the use of Alternative Dispute Resolution (ADR)

techniques in construction have gained great momentum in the public sector during recent years
in Hong Kong. The Hong Kong Government has initiated the inclusion of ADR methods as an
integral part of the dispute resolution procedure in the standard forms of contracts for use in
Government projects. However, the use of ADR in the private sector has not been apparent,
probably due to lack of experience and knowledge. The study revealed that users of dispute
resolution processes are pragmatic and consider obtaining benefits as the most critical factor
affecting the use of ADR in the construction industry in Hong Kong. Such benefits include cost
minimization and relationship preservation. It is also suggested that if ADR is to sustain its
growth in use, these processes must facilitate a speedy resolution (Cheung, 1999).

According to Moore (1996-2005) in the study The Mediation Process: Practical

Strategies for Resolving Conflict, the primary hindrances in mediation and reconciliation are
value clashes, power imbalances, destructive patterns of interactions, communications problems,
strong emotions and misinformation. There are a number of factors, which influence choice of
mediation strategies. They include the stage of the conflict and the parties' abilities to resolve
their dispute, the balance of power between the parties, which negotiation procedures are being
used, how complex the issues are, and what the parties expect from the mediator. (Moore, 1996-
2005)

In the article by Justice M. Jagannadha Rao entitled Concepts of Conciliation and

Mediation and their Differences, it asserts that there is a lack of teeth in the mediation process,
the involvement of dynamics of negotiations. Depending on what seems to be (an) impeding
agreement, exchange of information, provide new information; deal with differences in
perceptions and interest between negotiations and constituents (including lawyer and client).
(Rao, 2016)

Negotiation systems create a structure to encourage and facilitate direct negotiation

between parties to a dispute. Mediation and conciliation systems are very similar in that they
interject a third party between the disputants, either to mediate a specific dispute or to reconcile
their relationship. Mediators and conciliators may simply facilitate communication, or may help
direct and structure a settlement. Properly designed ADR programs, undertaken under
appropriate conditions, can support court reform, improve access to justice, increase disputant
satisfaction with outcomes, reduce delay, and reduce the cost of resolving disputes (Scott Brown,
Alternative Dispute Resolution Practitioners Guide).

Mediation remains one of the most widely used tools of conflict management in
international relations. Although the underlying assumptions and values that inform the
mediation process may differ significantly from one place to another, numerous communities
with different cultural and religious traditions resort to mediation in their peace-building efforts.
CONCILIATION AND MEDIATION: EFFICIENCY AND PROBLEMS 7

Mediation effort is unique, with its own history, nature and relationship of the actors involved,
and context in which it takes place. The overall aim of mediation is to stop violence and establish
peaceful relations between conflicting parties. This is according to the study entitled Resolution,
Religion and Mediation: The Role of Faith-Based Actors in International Conflict by Bercovitch
(Jacob Bercovitch, 2009).

According to A New Framework for the Evaluation of Mediation Success, by Munvar,

conflicts constitute an intrinsic element of social interactions. The success of mediations depends
on mediators ability to empathize with the surroundings, The interconnecting concepts of
timing, ripeness, Party identification, The different ways of conceptualizing the dynamics of the
international structure have an important bearing in the evolution of mediation practices and
issue characterization are all crucial to the understanding of the nature of the conflict and the
influence it has in the development of successful mediation initiatives. The different ways of
conceptualizing the dynamics of the international structure have also an important bearing in the
evolution of mediation practices. (Munvar, 2005)

Purpose of the Study

Human rights as a subject matter nowadays is tackled lesser as a sensitive issue needing
reinforcements in terms of its credibility to be undertaken in the political, legal, and social realms
of study. Numerous organizations or institutions do exist in every society. Several researches
were conducted on different places to pursue the same as this study, in order to assess the
performance of institutions of human rights are years after their respective creation.

The main drive of the study is to come up with an experienced-based output whether or
not the Commission on Human Rights in the Cordillera, as far as they existed lived up to the
very purpose of its creation especially on its delivery of its promotion of human rights using the
different preventive measures.

With the experiences that was given, the study want to identify the efficiency and the
helpfulness of the ADR process, under the command of the CHR, in solving particular disputes.
The study also want to identify the different factors that affect the success or the failure of the
process itself. Considering the cases handles by the Commission on Human Rights, we want to
seek the feasibility and strength of the institution to promote human rights of the people given
the limitations of providing preventing measures.

Significance of the Study

To protect and uphold few of the utmost evidences of our sovereignty and democracy is
the States responsibility. Correspondingly, as citizens of the Philippines, it shall also be our duty
to hold on and not to let go of it. Incidentally, in no intent to uncover blatantly the flaws of an
institution, this study would advance the support the Commission needs for the betterment of its
said purpose of creation. Similarly, this study would recognize any criticisms that would be
respected through encouragement of the concerned members of the citizenry to do the same as
well.
CONCILIATION AND MEDIATION: EFFICIENCY AND PROBLEMS 8

The said study is important, as it would yield beneficial results to different institutions,
groups of people and the society as a collective whole. For the institution, specifically with that
of the Commission on Human Rights and other institutions directed towards promoting and
upholding human rights, the study would further strengthen those institutions that could serve as
the starting point wherein the shortcomings of such institutions could be identified and be
resolved. By realizing the existing flaws, those institutions could do measures to resolve such
within their scope and jurisdiction.

For legislators, in the process of assessing the institution and finding out the positive
aspects and the negatives ones of it, they could do certain measures like strengthening the former
and enacting laws to meet the needs and the demands for the latter. In other words, this study
would be beneficial for lawmakers for it would help them realize the necessity of enacting laws
in relation to advancing human rights to further do things in furtherance of the general welfare
clause as well as giving the commission enough powers such as prosecutorial and adjudicatory in
their role as a promoter and protector of human rights.

For the people and the society as a whole, it would benefit them in several ways. The
proper information and awareness are relevant elements in promoting human rights. Thus, if the
people would be aware of what the mandates of the Commissions are, where to resort in
complaining human rights cases, the role of the commission and other essential aspects, then
they would somehow be empowered as they are geared with vital and necessary information in
promoting and upholding human rights. Moreover, this study can become one of the pillars of
future studies to further disentangle or unravel things that might not possibly be covered in the
current study.

Statement of the Problem

The main problem of this study is to provide experiential themes of the third function of
the Commission on Human Rights, which is providing appropriate legal measures for the
protection of human rights, provide for preventive measures and legal aid services to the under-
privileged whose human rights have been violated or need protection. However, this study would
focus on the factors and problems affecting the pre-trial methods done by the commission
namely conciliation and mediation.

Specifically, this study would identify the efficiency of the pre-trial courses. Secondly,
this study isolated the problems and factors encountered in the pre-trial methods.

Theoretical Framework

Phenomenology of human rights

The purpose of the phenomenological approach is to illuminate the specific, to identify
phenomena through how they are perceived by the actors in a situation. In the human sphere,
this normally translates into gathering deep information and perceptions through inductive,
qualitative methods such as interviews, discussions and participant observation, and representing
it from the perspective of the research participants. (Lester, 1999) In this research, experiences
pertain in providing appropriate legal measures for the protection of human rights as said in
CONCILIATION AND MEDIATION: EFFICIENCY AND PROBLEMS 9

our constitution. The participants of the research will be the source of evidences on how
violations on human rights are granted the appropriate legal measures, or not.

According to Angus (2006), phenomenological philosophy entails a practice of social and

political criticism. The original demand of phenomenology is that theoretical and scientific
judgments must be based upon the giving of the 'things themselves' in self-evident intuition. In
his study, Angus used phenomenology as a critique for institutions. He enumerated reformation
of evidence can be traced through four subsequent phases: 1. a critique of institutions; 2. coming
into presence or to direct one's attention to the social movements; 3. authentic being-with in
situation to the limit-condition of human life in being-toward-death; 4. nothingness. In this
sense, Commission on Human Rights will be analyzed throughout the research as that institution
which shall follow criticisms from traces of evidences.

Turner (1993) argued that sociology could ground the analysis of human rights (1) in a
concept of human frailty, especially the vulnerability of the body, (2) in the idea of the
precariousness of social institutions, and (3) in a theory of moral sympathy. With
phenomenology as the framework, and the former three analytical supports, the study will be
established by phenomena that will be given by the participants respectively (1) human rights
activists, (2) the officials of CHR, and (3) human rights lawyers. Different phenomena will be
analyzed to produce a valid and reliable conclusion.

METHODOLOGY

The study made use of the qualitative descriptive case study. This research design is
characterized by its aims, which relate to understanding some aspect of social life, and its
methods, which (in general) generate words, rather than numbers, as data for analysis (Patton &
Cochran, 2002). This was conducted within the Cordillera Region, particularly in the City of
Baguio. Consequently, the participants are residing and are working within said perimeter. The
participants came from both sexes, ages ranging from early 20s to late 50s, and some are single
and some are married.

The participants were nine in total, three coming from each three sectors, namely, the
Commission on Human Rights Personnel, Human Rights Organization of Lawyers, and lastly
Human Rights Movements or Activists. The participants from the Commission on Human Rights
are those of the top of the hierarchy in the Regional Commission located here in Baguio City.

The data collection used was in-depth interview with each of the participant ranging from
30 minutes to an hour length of time. A recording device was used during each interview with the
knowledge of the participants and was transcribed afterwards. This ensured the full attention of
the researchers to the participants during the interview. During the planned timeframe allotted for
the data gathering was a bit stretched due to factors involving the participants availability and of
the researchers. Thus, some interviews were conducted towards the end of January and finally
concluded on the first week of March.

The data gathered were subjected to thematic analysis, a phenomenological approach. For
the first specific problem, zeroes in to the efficiency of these processes, the answers will appear
as the participants stated. Given the three-sectored population, the answers separately created a
CONCILIATION AND MEDIATION: EFFICIENCY AND PROBLEMS 10

three-part category or theme dependent on the characteristics of the sector. From this point, the
answers of each participant from each sector will be crossed check to pinpoint recurring themes
or codes. The same process took place with the sector-to-sector crosschecking until a set of
themes or categories will only appear in the final list.

RESULTS, DISCUSSION AND ANALYSIS

The main problem of this study is to provide a phenomenology of the third function of
the Commission on Human Rights, which is providing appropriate legal measures for the
protection of human rights and preventive measures and legal aid services to the under-privileged
whose human rights have been violated or need protection. However, this study would focus on
the efficiency, factors and problems affecting the pre-trial methods done by the commission
namely conciliation and mediation.

Specifically, this study would identify the efficiency of the pre-trial courses. Secondly,
this study want to isolate the problems encountered in the pre-trial methods.

In the Commission on Human Rights, ways of settling disputes are referred to as the
Alternative Dispute Resolution (ADR). Conciliation is defined as a mode of settlement whereby
the Commission or its representative, who shall be a neutral party, encourages and/or facilitates
the parties in dispute to discuss their differences and assist them in making their own solution
and/or reaching a mutual agreement or consensus. On the other hand, mediation is a more active
mode where the Commission or its representative, although on a neutral side, submits proposals
or recommendations for the possible settlement of disputes or human rights issues brought before
it. In other words, as both pre-trial measures do function similarly, there are no distinctions made
between the two.

To answer the first question, what should be done first is to understand really what is
conciliation and mediation. Technically, legal definition shall provide the answer but still we
asked this as part of the interview. What we have learned from the interviews is the term
Alternative Dispute Resolution (ADR) under the Commission on Human Rights. Conciliation
and mediation under ADR is the same in the sense of letting both parties come to a middle
ground and resolve the conflict. Technically, the difference between the two is the existence of a
third party. Mediation uses another party acting as the mediation or the one that shall arbitrate
and help both parties to meet with a settlement. On the other hand, conciliation is a mechanism
which only utilizes the dialogue between the two parties without a secondary source of
viewpoints.

Efficiency of the Preventive Measures

From the answers of the research participants, the authors named the purposes of
conciliation and mediation as a pre-trial measure. They narrated how these pre-trial courses can
become useful and efficient in delivering legal aid services. The following discussions are
separated from every sector of participants.

Economic remedy
CONCILIATION AND MEDIATION: EFFICIENCY AND PROBLEMS 11

As one of the mandates of the Commission on Human Rights is to provide preventive

measures and legal aid services, it is stated that it is for the under-privileged. Generally, the
participants said that alternative dispute resolution (ADR) is useful to cut costs from trials and
long processes of our legal system. CHR offers conciliation and mediation for free, and if both
parties agree, there is no need for further financial concern. As what a CHR employee said, a pre-
trial course shall serve a case to end there, and not proceed to court anymore. She cited that
once, there was a case about a wife requesting from his husband a financial support for their
child. The problem is that the husband had an affair with another girl and so the couple got
separated. By this, the participant said that the woman can file a case against the husband
because elements of concubinage are present and there is RA 9262 or the Violence against
Women and Children Act. However, the woman, decided not to file any cases because in the
first place, money is the factor that precludes her in continuing to live peacefully. She knew that
money is a prerequisite in achieving a successful legal battle, but for a remedy, she resorted for
ADR.

According to the sector of human rights movements, all sides of the community
especially the flawed justice system definitely shows class bias on human rights. He said that
this is evident on how cases are from the upper class is different on how cases from the poor or
the mass are being catered and decided upon. As an example, the participant said his experience
on forwarding the case of a farmer against a member of the armed forces of the Philippines.
Conciliation, he said, is a better legal measure than to fight on legal courts withstanding the
expensive, very rigid and bureaucratic process of legal complaints.

Expensive, thats why they say that justice is only for the rich. You spend so much for
you to achieve justice. If you look at statistics when I was in the time of anti- death penalty I
think 80 or 90 percent belong to the poor you cannot afford a lawyer., said a human rights
lawyer. He continued, Others would say when you go to Abra you can hire a killer just for five
thousand pesos than going into court and paying so much. This proves that it is a better option
to mediate or conciliate immediately than pursuing cases on court. A participant from Free Legal
Assistance Group (FLAG) supplemented that in ADR, I do not very much want to earn so
much; I care more for the client. I think I turn to mediate immediately. Not all citizens could
afford lawyers. Conciliation and mediation would mean that there will be no more hiring of
lawyers to represent them on courts, no need to produce papers such as affidavits, and no more
additional payments from efforts to follow-up the case. She continued by saying They will send
their case both of them then if they understand and compromise each other. Thats what you call
the ending as I saw it. As I see it, we sit down with the mediator who listens to us. Both parties
try to make proposals, and I really appreciate it because they always have something. However,
she said that if they do not compromise, they will just brag to lose each others money.

Saves time and effort

In extension of the purpose of saving money from the legal battle, some of the
participants also considered the efficacy of ADR to minimize time and effort. The legal system
of the Philippines is a long and complicated one. Cruz (2014) claims that Philippines has the
slowest justice system in the world. A human rights activist from Progressive Igorots for Social
Action (PIGSA) believed that the justice system is flawed, and so it is one factor of how cases
are being judged. He said that class bias is prevalent in our system, and that there is a long
CONCILIATION AND MEDIATION: EFFICIENCY AND PROBLEMS 12

bureaucratic process that favors the powerful so as long as pre-trial course could be done, it is a
safe measure not to undergo such complicated process.

Participants from the human rights lawyers sector also agreed that pursuing cases will
demand time, dedication, and effort. A lawyer supplemented that there is always at least one
party to have a lawyer, then we will have many prosecutors, then we will have a judge appear
anytime they want to meet. This would create hassle on both parties. He added that lawyers are
so stressed with their cases, so it is much more stressful to those who are involved in the case.
Another participant narrated that there are times when there are these simple cases that can be
talked through and should not really take much time and get it into court. In some instances
when the other party got lost in the trial and is not fulfilled with how the case resulted, they will
appeal and continue to appeal. This could possibly take the case for years until a decision would
be made. She confirms that it is a very long process and it is expensive. Furthermore, another
lawyer claimed that instead of waiting for years just to wait a decision on courts, it is better to
undergo ADR because it would be done immediately depending on the cooperation of the parties,
but sometimes it will take more than a week depending on how fast the parties will be able to
come up with a compromise an option which they will both agree upon. If I am not mistaken
the mediation can took up to 60 days but you can ask the court for an extension if the mediator
see a development, chance and a possible settlement between the parties., he concluded.

Saving time and effort is as much of importance on the part of CHR. If a case will be
settled immediately, then it would mean that there would be no investigation of cases. You
know that cases that do not undergo ADR are serious human rights violation, such as violence
against women and children. These cases are filed on our court and we can actually represent
them. It is our job to investigate on this case and win. So really, human rights cases are our
priority, and cases that can be settled through talk should only be negotiated. It they will pursue
it in courts, and then it will add to our workload in putting effort to represent them.

Deterrence of further physical, emotional and psychological suffering

Almost all of the participants also recounted the importance of conciliation and mediation
in avoiding physical fights. According to a member of Cordillera Human Rights Alliance
(CHRA), most people who undergo the process of conciliation and mediation are families. She
said that it is better to undergo the pre-trial measure because it prevents more fights and
emotional pain. She complemented this by citing an example about her experience in
conciliation between Cordillerans. Since CHRA is also conducting pre-trial courses, she said
that it really helps because it prevents tribal wars to happen. She added that it is crucial for those
parties to agree because tribal wars may lead to physical injuries, and worse, killings. She said
Yang usapin ng tribes na pag hindi kaagad yan inupuan, hindi kaagad magmemediate ang mga
matatanda or yung people concerned, makaka-affect yan sa hindi lang iisa o dadalawa na
mamamatay. [The issues on tribes, if not immediately settled through talks or through the
advice of the elders, the effect would be casualties of not only one or two people, but more.] By
this, she claimed that to arrive on an agreement within the level of tribal negotiation is the most
effective way of conciliation and mediation.

In terms of emotional pain, it is related to proceedings on court trials. During court trials,
the accused usually experience humiliation. Participant from human rights lawyer sector said
CONCILIATION AND MEDIATION: EFFICIENCY AND PROBLEMS 13

that people are so judgmental because even though the case is still not decided people are already
thinking. She said that mediation, especially in divorce, is not only less costly but it neutralizes
the emotional elements of the process and allows for realistic negotiations in a private,
confidential atmosphere. The participant continued by saying that these are not criminal cases,
and people fail to give chance to the person to be rehabilitated. Conciliation and mediations aim
is to give chance for people to renew their past. She also claimed that not because a crime is
intended, doesnt mean the person is bad or evil. Bergner & Torres (2010) wrote that in the wake
of public conviction about his guilt, a man was suspended from his job pending the decision in
his court case; his wife left him; and he became a social outcast who could no longer present
himself in public and faced an almost certain lengthy jail term. Furthermore, after decisions are
announced on courts, some parties might get hurt and not be pleased by it. This would mean
emotional dissatisfaction to people involved.

CHR employees say that it is also painful on part of lawyers who represent cases.
Makikita mo kasi talaga yung pagod nila; minsan maluluha pa sila kapag kinakausap mo sila
kasi nawawalan na talaga sila ng pag-asa., one participant said. Because of multiple
proceedings and long process of investigation, litigations and trials on court, they say that
emotional and physical strength should be possessed. Because of that, they say that it is really a
better choice to exhaust all possible remedies before cases would proceed to court trials.

Decongestion of courts and jail

Most of the participants said that conciliation and mediation encourages for cases to be
settled before it would proceed to court trials and be clogged because of many cases filed.
Hundreds of thousands of cases remain pending for further action or resolution. The cases
pending in all levels of the judicial system keep piling up at an alarming rate. The average
judicial disposal of cases annually is only 85.83% (Tadiar, 1999).

A human rights lawyer said that because conciliation and mediation fuses the dockets of
the court, it will eliminate clogged cases. He continued by citing his experience on the Philippine
Mediation Board (PMB), that it is very effective because he was a part of it. He said that
mediation helps a lot because it resolves more than 50 percent of the cases filed. The possible
opportunities for parties to meet in this task are the possibility of arriving for a settlement of both
parties, he also said. Another participant added that even the judiciaries have so much to do and
process. And if trials would have ended sooner and they will go to jail, she supplemented, our
jails are with the same situation as courts. It is clogged and it holds more than its capacity. This
is also the perspective of other participants from the sector of CHR employees, and said that it is
better to declog courts and jails.

As member of Anakbayan Party list, a participant said that the government is the
perpetuator of injustice, especially in the promotion of human rights. Nabibili ang hustisya, at
karamihan sa mga nakukulong ay di karapat-dapat, partikular sa usapin ng pakikibaka., [Justice
is for sale, and almost all who go to jail are those who are not deserving of it], he said. He
added, Nakakapanlumo na ang mga namumuno dito ay hindi genuinely na nagsisilbi para sa
mga mamamayan [It is disappointing that those who are in position are not genuinely serving
the people.]. He believes that it is a more reasonable option to mediate rather than go to an
oppressive and unjust process.
CONCILIATION AND MEDIATION: EFFICIENCY AND PROBLEMS 14

Factors and Problems Encountered in ADR

For the specific problem of factors and problems encountered during the alternative
dispute resolution done in the Commission on Human Rights, the results encompasses from
personal aspects of the participants of the mechanism towards the external factors such as
pressure or influence of outside parties. The main factors that were gathered are pride,
cooperation and third party advises.

Pride
The first factor why the ADR process may not result to a win-win situation is pride,
particularly on having too much of it. Pride is a conundrum: simultaneously evil and a blessing
(Azar, 2006). In this study, we are referring to the former. Pride is of an emotional factor of the
person that perceives of how much see oneself in relation to another. Pride means conceit or
inordinate self-esteem (Joan, 2011).

More than half of the participants said that pride is one of the main problems why ADR is
unsuccessful. Such result wields that in alternative dispute resolution, if pride exist on either
parties, chance of getting into an agreement is minute and more chances to proceeding in a more
formal means of settling.

In this study, we found out that the source of pride of those involved in the ADR
mechanism is on wealth as well as on the view or perception of the complainant or the accused.
To further discuss this, the participants view pride in the following context.

According to the point of view of a lawyer of the Commission on Human Rights,

another reason is that they, the parties, will not reach and come up with an agreement is when
either one of them, or both of them have too much pride. With that, nothing will be settled. It is
important that aside from the fact that both parties voluntarily agree, they must also be willing to
compromise.

Due to too much pride, either party is not willing to compromise. Another participant
from the same sector agreed with the same statement stating that pride is common in disagreeing
of both parties. She set an example of herself that if she was badly hurt, she would not enter into
mediation or conciliation but rather seek and pursue a case particularly on compensating such
damages. Further, she said that the complainant have their own views and principles.

Cases that are subject to Alternative Dispute Resolutions are mostly those which involve
light offenses such as that of the misunderstandings and disputes among neighbors. According to
the lawyer of the Commission, I remember a case I handled before, ang nirereklamo nitong
kapitbahay sa isang neighbor ay yung mga asong mabaho, marami kasi ata siyang aso, yung
amoy ng tae ng aso naamoy sa kanila plus nahihirapan din silang makatulog dahil sa tahol ng
mga aso (I remember a case I handled before, an individual complained her neighbor due to his
dogs which are smelly and innumerable. This causes a feeling of discomfort to the complainant
as she has asthma and uneasy to sleep at night). Such light cases could be resolved without
CONCILIATION AND MEDIATION: EFFICIENCY AND PROBLEMS 15

difficulty yet because of ones pride, it goes the other way around. She further added that the case
wasnt resolved easily and even reached its 3rd conference. In the first conference, the
complainant expected for her neighbor to come but the latter did not come for reasons that such
case is too shallow to even reached to the Commission on Human Rights so it would possibly
cause humiliation to her in their barangay. In the second conference, the neighbor appeared and
attended in order to settle the case already as she was advised by her husband to do so. Finally, in
the third conference, the case was resolved and they had an agreement that the neighbor will
regularly clean the poop of his dog and put a leash on his dog.

In relation to pride is the admittance of the other party of what he had committed.
Another lawyer from the same sector said that in the process of conciliation and mediation, the
complainant is only asking for a public apology for what the accused had done, but the accused,
with his pride on his hand, does not agree to such settlement because the accused believed that he
had done something because of a certain reason. Thus, the refusal of the accused party shall
render the mechanism impractical and hopeless.

Another case cited by a lawyer of the Commission revolves around cases which are not,
by nature, subject to ADR proceedings but could still be under such proceedings in special cases.
These cases shall involve those parties that are related to one another. At first there is the
existence of too much pride among the parties involved but as the process goes by, this pride
does not really prevail because at the end of the day, the same blood runs in their veins. As what
the lawyer of the Commission said, the parties will always prevail because we cannot pursue a
case kung willing naman sila and usually ang rason doon is magkaroon ng peace sa family
especially if you are filing a case against your mother, stepmother or stepfather (the parties will
always prevail because we cannot pursue a case if they are willing in the first place and usually
the underlying reason is to keep peace within the family especially so if you are filing a case
against your mother, stepmother or stepfather).

From the Human Rights Lawyer participant, a lawyer said that disputes between the two
parties are not settled because they do not know how to lower themselves or in this case, they do
not compromise, they will just brag and lose each others money and resources. This pride is
rooting from the economic status and capability of parties. In most cases, the favored party or has
the means will proceed to a more formal and higher form of dispute resolution or simply going to
court. Due to economic inequality, the other party is not willing to go to an ADR mechanism.

Cooperation
Through conciliation and mediation, resolving conflicts without the need to proceed to
courts would be possible as this would not further complicate the problem in such a lengthy and
exhausting processes. The nature of alternative dispute resolution proceedings calls for a
voluntary participation of the parties involved. With that said, it clearly implies that the non-
cooperation of parties involved in the process has a considerable effect in the attaining the
objectives of such proceedings. This is supported by a considerable number of participants who
answered more than half that cooperation is a key factor in resolving conflicts. Thus, non-
cooperation would hinder the process.

In the sector of human rights activists, one said that the reason for non-cooperation of a
party is the fact that they do not appreciate such processes because of reasons such as the
CONCILIATION AND MEDIATION: EFFICIENCY AND PROBLEMS 16

economic status. In one of the cases that the activist encountered, even if the victim or the
perpetuator begs for the other party to reconcile, the other party will not be willing to undergo in
such proceedings as he believed that he has resources, connections and thus powerful enough to
win a case in the court.

In urban areas like Baguio, it is more common that cases do not undergo mediation
because of such factors but in remote or rural areas, it is the first step in resolving conflicts where
the elders play an important role in meeting the demands of parties involved. The activist added,
Yung usapin ng tribal war, useful ang conciliation and mediation dun na hindi na talaga
kailangang pang magkasakitan. Dahil sa practice na ganyan, para wala ng mangyaring patayan
magmemediate ang mga matatanda or yung people concern. So far, wala pa namang usaping
tribal war na umabot sa korte kasi sa level pa lang ng mga tribe e nareresolve na yan (In issues
of tribal war, conciliation and mediation had been useful. Because of such practice, killings are
prevented as the elders or people concerned have initiatives to conduct mediation. So far, there
are no cases of tribal war that reached the court as it is resolved already within the tribes).

This stance of economic status causing for the non-cooperation is seconded by another
participant of this sector with his statement that all side of the community human rights and the
flawed justice system showcases class bias as cases filed from the upper class and from the
lower class are catered differently. The existence of economic inequality implies then that the
rich will likely to have the capability to pursue cases in courts as compared to those poor ones
which might possibly result to the latter giving up in the process, as such would incur more costs
and undesirable experiences to the poor ones. It is seen that the perspective of human rights
activists is anchored on the concepts of inequality, unevenness, and disparity as they are the ones
representing victims in such processes.

In the point of view of the Commission on Human Rights itself, they believed that aside
from the fact that both parties agreed voluntarily, it is important that they must also be willing to
have a compromise agreement. According to Eilerman (2006) the use of compromise is a
common solution to resolving disagreements in negotiation and mediation processes. While it
may produce an agreement, compromise does not always resolve problems that contain
underlying interpersonal or organizational conflict. This is because compromise is frequently a
"settled" resolution to a problem and not typically the optimal solution sought by either party
(Eilerman, 2006).

Cases that are handled by the Commission are mostly those involving issues for support
of the father to his children. In these cases, the primary concern which arises and causes for the
non-cooperation of one to the other is the unrealistic demands being requested by the other party.
For instance, a couple already separated and the woman demands for the father of their children
for a monthly support of 30 thousand, this demand would somehow be reasonable but analyzing
the context carefully, the fathers salary only amounts to 25 thousand. This is where the role of
legal officers of the Commission enters as they could tell the other party that the financial
support that one asks to is not really possible and maybe it could be lowered down to l0 to 15
thousand.
CONCILIATION AND MEDIATION: EFFICIENCY AND PROBLEMS 17

Aside from the cooperation of the parties before and during the beginning alternative
dispute resolution proceedings, the cooperation of parties throughout the whole process affects
the success or failure of such proceedings. The process of such proceedings begins with the filing
of complaint to the Commission and the assessment of it if its subject to such proceedings. In
this process, it includes notifying parties to attend at a certain time and day through mailing.
There are instances that they notify the other party to come not only once, not only twice but as
much as they can. But the problem lies with the fact that unlike in courts which could compel
parties to attend in such proceedings and the inability to do so would incur sanctions and
penalties, the said Commission does not have such power to do so as the conciliation and
mediation proceedings in the first place is really voluntary. The inability of the parties to appear
is because of personal commitments such as schooling and work. These commitments will be
prioritized more by a party as those things will yield results which would undoubtedly be
beneficial to them instead of going to such time consuming proceedings which leaves the parties
in uncertainty as to whether it would be a success or not.

As answered by a human rights lawyer in response to the query of how long it will take
for a mediation or conciliation to be concluded, It depends. Sometimes it will be done
immediately depending on the cooperation of the parties but sometimes it will take more than a
week depending on how fast the parties will be able to come up with a compromise an option
which they will both agree upon.

Third Persons Advise

People often rely on other individuals decisions and opinion to make their own. People
may conform to other peoples decisions and opinion because of their desire to make correct
decisions under uncertainty (Yasuaki Sakamoto).

According to most respondents one of the main factors affecting the process of
conciliation and mediation is the interference of a third party which may be the lawyers
representing each parties or their relatives which greatly influences the decision of the parties
(Fisher).

In one of the cases that the Commission on Human Rights handled, it was identified that
a factor that could affect the process of conciliation and mediation aside from the offer of the
other party is the advices from third persons. There was one case were the complainant was
about to accept the offer of the other party in the process of settling the dispute but the friends of
the complainant told her that papayag ka lang sa ganyang kababaw na offer? No ah, dapat
magdemand ka ng mas malaking amount (you will agree to have a settlement with that offer?
No, you should demand a higher amount). The mediator of the CHR was in good faith that the
case would be settled for about 1 or 2 ADR conferences. As a matter of fact, during the first
conference, both parties could be seen to meet mid-way but the expected result of the succeeding
conference was not reached. In the level of the ADR proceedings, the case concluded in its 5th
conference and such factor of third persons advises was exposed to have prolonged the process.

As a human rights activist answered, Personally, naniniwala ako na may mga krimen na
hindi nag-eend sa mediation. May mga crimes na kahit sa tinigin ng iba e light lang at maaring
CONCILIATION AND MEDIATION: EFFICIENCY AND PROBLEMS 18

mapag usapan sa mediation, hindi sapat na magbayad ka lang kasi yung effect sa victim forever
na yan lalo na dun sa mga bata (Personally, I believe that there are crimes that should not end
in mediation. In the point of view of others, the crime might not be that complex that could be
resolved through mediation but it is not enough to just compensate for the damages done as the
pain will remain forever especially in those children)

As was answered by one of the participants representing the human rights lawyers, there
are some who always have to listen to their wives opinion and decision, they want to settle the
issue but their wives insist not to or in some other instances the lawyer intervenes and instead of
making the situation better they even show more pride and this results the case to be more
complicated and prolonged. In this instance it is seen how the opinion and even the say of their
relatives affect their decision making positively and negatively even their strategy in entering and
facing the problems before them, it affect the process depending on the advices they take, how
they understand the advice given to them and in what manner they will entertain such views
different from their own. The importance of the interference of a third person in this process lies
beyond how helpful and how may it incur destruction in the process. No party in this instance
would want lose or feel less favorable so they asks advices from their relatives hoping for it to be
best and due to the influence and pressures from their families this may somehow worsen the
whole process of conciliation and mediation, thorough and cautious decisions are needed for
both parties in order to come up with the best possible solutions from their own parts.

Aside from the focus on the advices emerging from the family and friends of the
complainant or even the perpetuator, the advices from lawyers affect such modes of settling
disputes. As answered by another human rights lawyer, For me, because I do not want to earn so
much, I care more for the client. I think Ill turn to mediate immediately. But in the legal
practice, it is sort of a deprivation in the part of the lawyers of their orders in court because if
they are in court, they also get their attorneys fee. But as to private practitioners, they would
always think of whats good for both parties. It is hard for the parties to form and meet with the
settlement, and they will hire lawyer which makes it harder because they have to pay lawyers, so
its very positive I like it (mediation)

Conclusion
In conclusion and to answer the general question, the alternative dispute resolution, both
the mediation and conciliation, is a top notch mechanism to settle disputes on conflicting parties.
It was proven that its usefulness and efficiency is of great benefit not only the parties involved
but as well in other institutions that may be affected. In the case of both parties, ADR presents
itself as an economic remedy in settling disputes. It also saves time and effort not only coming
from the parties involved but also from the CHR that is amass of cases and investigations.
Furthermore, ADR helps in the deterrence of further damages, as well as emotional and
psychological suffering. Lastly, this mechanism decongest courts and sometimes jail.

Secondly, under the umbrella of Commission on Human Rights, mediation and

conciliation mechanism according to half of the participants said that mediation and conciliation
is not supposedly part of the function of CHR. This is so because as viewed by them, the CHR
mainly handle cases that are human rights violation in nature and such violations must not be put
into a mediation or conciliating table. Rather, they suggested that CHR should let other
CONCILIATION AND MEDIATION: EFFICIENCY AND PROBLEMS 19

institutions for instance the Mediation Board under the Supreme Court. However, as seen in the
CHR guidelines and procedures, there are cases the ADR is not applicable denoting serious
human rights violations as well as the cooperation of both parties to enter into an ADR.

Lastly, there are different factors and problems encountered in the mediation or
conciliation process. First is coming from either parties or both which is pride. Pride that mainly
rooting from the confidence in the means that one has or a result of wounded pride. Another
one is the cooperation of both parties. At the first place, it is not mandatory for both parties to
undergo ADR, but rather ADR is only seen as a possible option viable for the taking and is
possible considering the nature of the violation which are economic, social and cultural issues
and it is not a serious human rights violation. Last is the result coming from the third person
advises to the parties involved either before or on the process of mediation or conciliation. Third
person is either the relatives or coming from a lawyer itself or other external source of views.

RECOMMENDATION

In relation to the premise that Alternative Dispute Resolution is indeed a very efficient
process and is highly recommended provided the necessary conditions are met. The practice of
these processes, conciliation and mediation, has been embedded in the culture of the Filipino
people since chieftains or rajas ruled the early Philippine Barangay. However, a point of inquiry
was raised with regards to whether the Commission on Human Rights whose primary function
was to investigate on human rights violations is fit for to conduct such processes as they are
dealing with human rights violations with the state or state actors as perpetrators. As mentioned
by the Commission, they have measures so as to qualify certain cases brought to them if it be
subjected to the said processes or not.

In good faith, it is recommended that the Commission on Human Rights establish an

office whereby it is duly dedicated to cases which are in fact can be subjected to Alternative
Dispute Resolution processes. An example of which according to the Commission itself which
they as well identified to be the most common of all the cases brought to them is that of
financial support between a parent to his child. Clearly, going through these processes instead
of hiring a lawyer and filing a case which are not only costly but also emotionally damaging and
time consuming. On the other hand, the creation and continued practice of such service in the
Commission on Human Rights not only help people economically and emotionally, but will as
well as most of the participants suggested, it will help de-clog the cases in the courts.

It could not be denied that Alternative Dispute Resolution has a significant role in solving
conflicts at the pre-trial level. These pre-trial measures could not be maximized to its full
potential as the problem lies on the unfamiliarity or unawareness of people in these services that
the Commission on Human Rights offers. As the officials and personnel of the Commission on
Human Rights provided, the average number of cases brought and are subject to ADR are not
that copious. This has a clear implication that could be directly addressed in the dissemination of
information.

Thereupon, it is recommended that the Commission on Human Rights further strengthen

its information dissemination campaigns through their promotional activities and in the process,
cooperating with different governmental institutions and non-governmental organizations. The
CONCILIATION AND MEDIATION: EFFICIENCY AND PROBLEMS 20

promotion division of said institution aims to increase awareness in the community to what CHR
does such as the presence of ADR proceedings in their mandate. In the past years, the
Commission on Human Rights, in coordination with the Department of Education, had
conducted a project entitled Development of Human Rights Education Teaching Exemplars
which focuses on the dissemination of vital information to the community during the formative
years of the Commission. Furthermore, aside from being physically present to different areas in
educating people about what the CHR does, the promotion division of said institution could
significantly maximize their potential gains of people in ADR and other services that they offer
by the power of technology the use of social media. As the world lies in our fingertips,
information could be dispersed effectively and to wider audience. To some extent, the primary
reason why people do not resort to such pre-trial courses is the fact that they are not aware in the
existence of such program. With that said, the effective dissemination of such campaigns would
further yield beneficial results not only to the parties involved but to the society as a whole.

For further researchers on the ADR process under the Commission, this study can be used
as one of the basis for their enquiry. They could use this as a tool to expound their discussions
supplementing their results as well as
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